COMMUNICATION AND CULTURE 6308: THE POLITICS OF INTELLECTUAL PROPERTY, HUMAN RIGHTS AND DEVELOPMENT REVISED SYLLABUS York University/Ryerson University WINTER 2005 Professor Rosemary J. Coombe Canada Research Chair in Law, Communication and Culture TEL #3007 (York) Office Hours: Thursdays 1:00-2:45pm or by appointment rcoombe@yorku.ca Class Meets Wednesdays 7-10 pm Room: TEL 0004 Please note that many of the articles for this course (those for which hypertext links are embedded in this syllabus) are available in full text online through Harvard University. If you cannot open the link on the syllabus go to the Anthropology 261 website at http://www.courses.fas.harvard.edu/~anth261/Articles. (I have found that using Firefox as my web browser has made this easier than using Internet Explorer). We will be moving these articles over to a course website under my website during the next few weeks. Course Description The expansion of intellectual property rights (IPRs) has become a major area of international controversy and global resistance as these properties come into conflict with broader public interests and, arguably, often violate human rights. The course explores the new regimes of trade that are expanding the privatization of more and more areas of human life, and the drive to develop new IPRs to recognize more areas of human effort in the context of the emergence of informational capitalism and neoliberal environmentalism. The World Intellectual Property Organization has recognized that the intellectual property system must “reach out to new beneficiaries.” Some environmentalists have suggested that IPRs should be used to further goals of biodiversity preservation and sustainable development. The intellectual property framework, some argue, is sufficiently flexible to accommodate a range of “traditional” forms of production, handicraft, medicine, and folklore. Others decry this movement as an insidious form of creeping commodification. A vibrant public domain, they argue, is necessary for democracy, 1 competition, and development. A global commons, others suggest, is absolutely necessary for human development. The worldwide indigenist movement has proclaimed the rights of indigenous peoples to control their own cultural heritage in an international draft declaration (that has arguably achieved the status of international customary law) while the more general human rights framework affirms collective rights to the maintenance of cultural identity. The capacity of IPRs to protect these rights, however, is widely doubted. As a consequence, new indigenous research protocols and new forms of secrecy have evolved. New protocols and new professional ethics with respect to research are emerging. Even in more developed countries there is a growing movement to find means of “protecting” cultural diversity from the predations of market forces and trade agreements as a means of ensuring a culturally pluralist public sphere. From an American perspective, however, these efforts appear to be mere forms of trade protectionism and violations of free speech rights to boot. The course will explore these issues as new forms of political struggle. The course will provide students with a background in understanding the legal regimes and international social and political networks that create the context for new fields of cultural politics in an era of informational capital. We will consider four regimes-- human rights, indigenous rights, environmental rights related to biolological diversity, and trade related intellectual property rights -- as relevant contexts. Readings for the course are interdisciplinary (legal studies, anthropology, area studies, development theory, environmental studies as well as communications) because of the nature of the fields in which these political issues have emerged. Following an introduction to the major forms of intellectual property, we will consider how intellectual property establishes fields of ownership and why these forms of ownership are so controversial. Intellectual properties create monopolies over public goods, effect price differentials, and have distributional consequences for the availability of important technologies (from medicines to seeds). These tendencies are exacerbated with the rise of information capital in the "new economy" and force us to reconsider the public interest in access to knowledge and technology, the meanings of the "progress" interest that underlies these rights, its relation to “development” and the relation of intellectual property protections to human rights commitments. Specific issues of controversy in international law and policy are then explored. Evaluation Students will be asked to choose one of the weekly topics, present the main themes in the readings, and pose questions for class discussion (20%). They are encouraged to use handouts or multimedia aids in the classroom to focus discussion. Each student will use this preliminary reading to provide a base for further research on the same topic or a closely related one for the purposes of writing their final paper (60%) which will be approximately 30 pages long. During the course, students will be expected to choose two 2 additional weeks where they will prepare short (6 page) sets of reading notes responding to a particular week’s readings to be handed in in advance of the class on which the readings were assigned (20%). It is anticipated that students will choose weeks where the assigned readings are of particular relevance to their essay topics as a way of beginning to critically consider the literature in the field. Readings not available online are photocopied on reserve at York (Scott library) and in the department (TEL 3RD Floor). Books you may wish to purchase (but are on reserve at York and will be requested to be put on reserve at Ryerson): Peter Drahos and Ruth Mayne, eds., Global Intellectual Property Rights: Knowledge, Access and Development. (Palgrave, Macmillan 2002). Peter Drahos and John Braithwaite, Information Feudalism (New York: New Press, 2002). Michael Brown, Who Owns Native Culture? (Harvard University Press, 2003). JANUARY 12, 2005 CLASS CANCELLED – COOMBE TOO ILL (TO BE RESCHEDULED). CLASS 1: JANUARY 19, 2005 COURSE INTRODUCTION AND OVERVIEW Survey of course themes. Optional Reading: The following legal instruments should be kept in mind as references during the course but you are not responsible for memorizing them or understanding their full meaning (no one else does). The International Covenant on Civil and Political Rights (1966) The International Covenant on Social, Economic and Cultural Rights (1966) Both available online at http://www.unhchr.ch/html/intlinst.htm . The Trade Related Aspects of Intellectual Properties (TRIPS) Agreement of the World Trade Organization. Draft Declaration on the Rights of Indigenous Peoples (Working Group on Indigenous Populations) 3 CLASS 2: January 26, 2005 (?) THE JUSTIFICATIONS FOR INTELLECTUAL PROPERTY AND ITS ROLE IN THE INFORMATION ECONOMY Edwin Hettinger, “Justifying Intellectual Property,” Philosophy and Public Affairs 18 (1989): 31-52. Online at http://www.yorku.ca/rcoombe/articles/hettinger.pdf Arun Kundnani, "Where do you want to go today? The Rise of Information Capital," 40 Race and Class 49 (1998/9) Peter Drahos, "Introduction: Why ‘Information Feudalism’?" In Peter Drahos and John Braithwaite, eds., Information Feudalism (New York: New Press, 2002) 1-18. BOOK ON RESERVE. COPY IN DEPARTMENTs. Bronwyn Perry, "The Fate of the Collections: Social Justice and the Annexation of Plant Genetic Resources" in Charles Zerner, ed., People, Plants and Justice: The Politics of Nature Conservation (New York: Columbia University Press, 2000) 374-400. COPY IN DEPARTMENTs. Optional: John Frow, "Information as Gift and Commodity," New Left Review, number 219 (September-October 1996) 89-108. Online at http://www.yorku.ca/rcoombe/articles/frow.pdf Johan Söderberg, “Copyleft vs. Copyright: A Marxist Critique,” First Monday, 7,3, (March 2002). Online at http://www.ludd.net/retort/msg00100.html Background: B. Chimni, "Marxism and International Law" Economic and Political Weekly. Available at http://www.epw.org.in/ (Archives February 6, 1999). COPY IN DEPARTMENT. CLASS 3: February 2, 2005 THE POLITICS OF TRADE NEGOTIATIONS Peter Drahos, "Global Property Rights in Information: The Story of TRIPS at the GATT" 13 Prometheus 6 (1995). Reprinted in Peter Drahos, ed., Intellectual Property (Aldershot: Dartmouth Publishers 1999) 419-430. COPY IN DEPARTMENT. Peter Drahos, “Negotiating Intellectual Property Rights: Between Coercion and Dialogue” in Peter Drahos and Ruth Mayne, eds., Global Intellectual Property Rights: Knowledge, Access and Development. (Palgrave, Macmillan 2002) 161-182. BOOK ON RESERVE. 4 Venturelli, Shalini. “Cultural rights and world trade agreements in the information society,” Gazette 60: 47(1998). COPY IN DEPARTMENTS> I HAVE EDITED THIS. Susan K. Sell, “Industry Strategies for Intellectual Property and Trade: The Quest for TRIPs. And Post-TRIPs Strategies” Cardozo Journal of International and Comparative Law 10: 79 (2002). Susan K. Sell, " Post-TRIPS Developments: The Tension Between Commercial and Social Agendas in the Context of Intellectual Property." Florida Journal of International Law 14: 93 (2002). Martin Khor, “Rethinking Intellectual Property Rights and TRIPs” in Peter Drahos and Ruth Mayne, eds., Global Intellectual Property Rights: Knowledge, Access and Development. (Palgrave, Macmillan 2002) 201-213. BOOK ON RESERVE. COPY IN DEPARTMENTS. Background: Both of Sell’s articles are drawn from her book-length study, Private Power, Public Law: The Globalization of Intellectual Property Rights (Cambridge University Press, 2003). More historical detail and political context is provided in Peter Drahos and John Braithwaite, Information Feudalism (New Press, 2002) 55-143. BOOK ON RESERVE.. Further developments including the expanded intellectual property rights contained in The Free Trade Area of the Americas Agreement are explored in Regional and Bilateral Agreements and a TRIPS-plus World: The Free Trade Area of the Americas (Quaker United Nations Office, 2003). Available online at http://www.geneva.quno.info/pdf/FTAA%20(A4).pdf or http://www.bilaterals.org/IMG/pdf/Vivas_BTs_study_jul03-2.pdf CLASS 4: February 9, 2005 RIGHTS AND THE PUBLIC DOMAIN Sol Piicciotto, “Defending the Public Interest in TRIPS and the WTO” in P. Drahos and R. Mayne, Global Intellectual Property Rights: Knowledge, Access and Development (Palgrave Macmillan, 2002), 224-243. BOOK ON RESERVE. Peter Phillips and Dan Dierker, “Public Good and Private Greed: Realizing Public Benefits from Privatized Global Agrifood Research” in The Future of Food: Biotechnology Markets and Policies in an International Setting (International Food Policy Research Institute, 2001) 129-152. COPY IN DEPARTMENT. Law and Contemporary Problems (Winter 2003). Available online at www.law.duke.edu/journals/ 5 James Boyle, “The Public Domain” at http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+1+(WinterSpring+ 2003) James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain”, available http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+33+(WinterSpring +2003) Anpum Chander and Madhavi Sunder, “The Romance of the Public Domain,” California Law Review 92: 1331-1369 (2004) NOTE THAT AS IN MOST LAW REVIEW ARTICLES, MOST OF THESE PAGES ARE TAKEN UP BY FOOTNOTES. AVAILABLE ONLINE AT http://www.yorku.ca/rcoombe/articles/chander.pdf CLASS 5: February 16, 2005 (To be Rescheduled as February 16 is York reading week). “PROGRESS,” “DEVELOPMENT” AND HUMAN RIGHTS United Nations Human Rights Commission Resolution (April 16, 2001) Margaret Chon, "Postmodern Progress: Reconsidering the Copyright and Patent Power" De Paul Law Review 43: 97-135 (1993) (edited: Omit Part II “The Missing Project of Progress” (this is actually Part I but is mislabeled in Lexus) and start reading again at Part II, “The Project of Progress: Progress and Modernity.” Do not read Part III “Originality and Intent” except for the last two paragraphs and read the Conclusion.) ONLINE Richard P. Norgaard, “The Illusions of Progress” and “The Betrayal of Progress” in Richard B. Norgaard, Development Betrayed: The End of Progress and a Coevolutionary Revisioning of the Future (Routledge 1994) 49-60, 1-11. ON RESERVE AND IN DEPARTMENT.. Audrey Chapman, "A Human Rights Perspective on Intellectual Property, Scientific Progress, and Access to the Benefits of Science" in Intellectual Property and Human Rights (World Intellectual Property Organization, 1998) 128-141, 153-162. ALSO COPIES IN DEPARTMENT. Vincent Turner, “The Myth of Development: A Critique of a Eurocentric Discourse” in Ronaldo Munck and Denis O’Hearn, eds., Critical Development Theory (Zed Books, 1999) 1-26. COPY IN DEPARTMENT AND ON RESERVE. OR Frederick Cooper and Randall Packard, “Introduction” in Frederick Cooper and Randall Packard eds., International Development and the Social Sciences (University of California, 1997) 1-41. COPY IN DEPARTMENT. Background: 6 Rosemary J. Coombe, “Intellectual Property, Human Rights and Sovereignty,” Indiana Global Legal Studies Jnl. 6: 59-115 (1998). Available at http://www.yorku.ca/rcoombe/publications/Intellectual_Property_Human_Rights_and_So verei.PDF This article puts intellectual property rights in relation to the international human rights framework. Read pages 59-82 only. Highly Recommended: Balakrishnan Rajagopal, International Law From Below: Development, Social Movements, and Third World Resistance (Cambridge University Press, 2003) 233-270. ON RESERVE. February 23, 2005 Ryerson Reading Week – No Class CLASS 6: March 2, 2005 HUMAN RIGHTS, CULTURE AND CULTURAL RIGHTS Jane Cowan et. al., Introduction in Jane Cowan, Marie Benedicte Dembour and Richard Wilson eds., (2001) Culture and Rights: Anthropological Perspectives (Cambridge University Press, 2001) 1-26. ON RESERVE IN DEPARTMENT. A.K. Peetush, “Cultural Diversity, Non-Western Communities and Human Rights” Philosophical Forum 34: 1 (2003). Bruce Robbins and Elso Stamatopolou, “Reflections on Culture and Cultural Rights” South Atlantic Quarterly 103: 419-434 (2004). Available online at http://www.yorku.ca/rcoombe/articles/robbins.pdf George Yudice, “Introduction,” and “The Expediency of Culture,” in The Expediency of Culture (Duke University Press, 2003) 1-3, 9-39. COPY IN DEPARTMENT. Ned Rossiter, “Creative Industries, Comparative Media Theory and the Limits of Critique from Within” Topia 11: 21-48 (2004). COPY IN DEPARTMENT. Highly Recommended (Again): Balakrishnan Rajagopal, International Law From Below: Development, Social Movements, and Third World Resistance (Cambridge University Press, 2003) 233-270. ON RESERVE. COPY IN DEPARTMENT. 7 CLASS 7: March 9, 2005 SUSTAINABLE DEVELOPMENT, BIODIVERSITY AND ENVIRONMENTAL POLITICS Richard B. Norgaard, “The Challenge of Sustainability” and “The Co-evolutionary Process Explained” in Richard B. Norgaard, Development Betrayed (Routledge 1994) 1120, 81-91. ON RESERVE Melissa Leach and James Fairhead, “Anthropology, Culture and the Environment” in Jeremy MacClancy, ed., Exotic No More: Anthropology on the Front-Lines (University of Chicago Press, 2003) 209-226. ON RESERVE Noah Zerbe, “Contested Ownership: TRIPs, CBD and Implications for Southern African Biodiversity” Perspectives on Global Development & Technology 294 (2002). Kathleen McAfee, “Selling Nature to Save it? Biodiversity and Green Developmentalism,” Environment and Planning D: Society and Space 17: 133 (1997). Available online at http://www.yale.edu/forestry/mcafee/sellingnature.html Background: For an overview of the various NGOs active in the area of policy-making with respect to biodiversity, traditional knowledge, and intellectual property see Geoff Tansey, Study on the Relationship Between the Agreement on TRIPs and Biodiversity Related Issues. Report for the DG Trade Commission, September 2000. CLASS 8: March 16, 2005 PROTECTING TRADITIONAL KNOWLEDGE Crucible Group II, “Knowledge” in Seeding Solutions: Policy Options for Plant Genetic Resources Volume One (Ottawa: International Development Research Centre, 2000) 7282. COPY IN DEPARTMENT. Graham Dutfield, Protecting Traditional Knowledge and Folklore: A Review of Progress in Diplomacy and Policy Formation (UNCTAD and ICTSD, October 2002) 1-38. IN DEPARTMENT. REPLACE WITH COTTIER (2003). Indigenous Rights M. Battiste, Protecting Indigenous Knowledge and Heritage (Regina: Purlich Publishers, 2000) 191-201. ON RESERVE. IN DEPARTMENTS. Background: 8 Nino de Carvallis, “From the Shaman’s Hut to the Patent Office: In Search of Effective Protection for Traditional Knowledge” (Forthcoming from Cambridge University Press, 2005). A good survey of developments at the World Intellectual Property Organization. Available online “Being” “Indigenous” Robert Hitchcock, “We are the First People: Land, Natural Resources and Identity in the Central Kalahari, Botswana” Journal of Southern African Studies 28: 797 (2002). AND Courtney Jung, “The Politics of Indigenous Identity: Neoliberalism, Cultural Rights and the Mexican Zapatistas” Social Research 70: 433 (2003). Online at http://www.yorku.ca/rcoombe/articles/jung.pdf AND Tania Li, “Locating Indigenous Environmental Knowledge in Indonesia” 121-144. exact cite to be located Background: For an understanding of the global context in which an indigenist movement has emerged see Ron Niezen, “A New Global Phenomenon” and “Sources of Global Identity” in Ron Niezen, The Origins of Indigenism (University of California Press, 2003) 1-28, 53-92. ON RESERVE. For a comprehensive discussion of the lack of any singular definition of indigenous peoples in international law and arguments in favour of a constructivist position, see Benedict Kingsbury, “Indigenous Peoples” in International Law: A Constructivist Approach to the Asian Controversy” American Journal of International Law 92: 414 (1998). CLASS 9: March 23, 2005 KNOWLEDGE AND COMMUNITY IDENTITY: CONTESTED CONCEPTS Agarwal, "Dismantling the Divide Between Indigenous and Scientific Knowledge" 26 Development and Change (1995) 413-439. IN DEPARTMENT Arturo Escobar, "Whose Knowledge, Whose Nature? Biodiversity Conservation and the Political Ecology of Social Movements" 5 Journal of Political Ecology (1998) (17 pages). L. Shane Greene, “Indigenous Peoples Incorporated: Culture as Politics, Culture as Property in Contemporary Bioprospection Deals” Current Anthropology 44: (2004). 9 Raymond l. Bryant, “Non-Governmental Organizations and Governmentality: ‘Consuming’ Biodiversity and Indigenous People in the Phillipines,” Political Studies 50: 268 (2002). CLASS 10: March 30, 2005 INFORMATION WANTS TO BE FREE? OPEN SOURCE AND PEER TO PEER POLITICS Siva Vaidanathan, The Anarchist in the Library (Basic Books, 2003) pages tba. THIS BOOK WILL BE ORDERED BY YORK BOOKSTORE. Larry Lessig, Free Culture (2004) pages tba. Available online at http://www.canadiandemocraticmovement.ca/pdf/freeculture.pdf The first fifteen pages of the published version of Mackenzie Wark, The Hacker Manifesto (Harvard University Press 2004) are available at http://www.hup.harvard.edu/pdf/WARHAC.pdf Rosemary J. Coombe and Andrew Herman, “Rhetorical Virtues: Property, Speech and the Commons on the World-wide Web,” Anthropological Quarterly 77: 559-574 (2004) . Available online at http://aq.gwu.edu/%7Egwaq/aq_cultures_opensources.pdf (pp. 59-74) or http://www.yorku.ca/rcoombe/publications/Coombe_and_Herman_Rhetorical_Virtues.pdf CLASS 11: April 6, 2005 THE COPYRIGHTING OF CULTURE AND THE PROBLEM OF CULTURAL APPROPRIATIONS Peter Jaszi and Martha Woodmansee, "The Ethical Reaches of Authorship," 95 South Atlantic Quarterly 947 -970 (1996). ON RESERVE Philip Scher, “Copyright Heritage: Preservation, Carnival and the State in Trinidad” Anthropological Quarterly 75: 453 (2002). Michael Brown, “Cultures and Copyrights” in Michael Brown, Who Owns Native Culture? (Harvard University Press, 2003) 43-68. ON RESERVE. Rosemary J. Coombe, “Fear, Hope and Longing for the Future of Authorship in a Revitalized Public Domain” De Paul Law Review 52: 1171-1191(2003). Smiers, J. “A Convention on Cultural Diversity: from WTO to UNESCO” Media International Australia 111: 81-96 (2004). TO BE OBTAINED FROM LIBRARIES. Background: 10 Recent WIPO Report on the Protection of Folklore or Cultural Expressions (August 2003). CLASS 12: THIS WOULD HAVE TO BE A MAKE-UP OR EXTEND THE TERM PHARMACEUTICALS AND TRADITIONAL MEDICINE (these readings would be updated if students chose this module) Ellen ‘t Hoen, “Public Health and International Law: TRIPs, Pharmaceutical Patents and Access to Essential Medicines: A Long Way from Seattle to Doha.” Chicago Journal of International Law 3: 27 (2002). ”Symposium: Global Intellectual Property Rights, Boundaries of Access and Enforcement: Aid Drugs and the Developing World. The Role of Patents in the Access of Medicines.” Fordham Intellectual Property, Media and Entertainment Law Journal 12: 675 (2002). Post Doha Developments: See Talk at SARAI website.URL to be provided. “Intellectual Property Rights and Traditional Medicine: Policy Dilemmas at the Interface.” Social Science and Medicine 7: 745-756 (2003). Gerard Bodeker, “Traditional Medical Knowledge, Intellectual Property Rights and Benefit Sharing” 11 Cardozo Journal of International Law 11: 785 –811 (2003). Available online at http://www.yorku.ca/rcoombe/articles/boedeker.pdf Background: Kelly A, Friedgen, “Rethinking the Struggle Between Health and Intellectual Property: A Proposed Framework for Dynamic rather than absolute Patent Protection of Essential Medicines” Emory Int'l L. Review 16: 689 (2002). PLANT GENETIC RESOURCES AND THE DILEMMA OF FARMERS RIGHTS David A. Cleveland and Stephen C. Murray, "The World's Crop Genetic Resources and the Rights of Indigenous Farmers" Current Anthropology 38: 477-515 (1997) With comments by other anthropologists. ALSO COPY IN DEPARTMENT.. Josep-Antoni Gari, "Biodiversity Conservation and Use: Local and Global Considerations" Science, Technology and Development Discussion Paper, Harvard University (2000).COPY IN DEPARTMENT. Stephen Brush, "Bioprospecting the Public Domain" 14 Cultural Anthropology 535 - 555 (1999).ON RESERVE. COPY IN DEPARTMENT. 11 How TRIPs threatens biodiversity and food sovereignty: Conclusions and Recommendations from NGO Perspectives (2003). Available online at http://www.grain.org/rights/tripsreview.cfm?id=16 BIODIVERSITY POLITICS Neil Harvey, “Globalisation and Resistance in Post-Cold War Mexico: Difference, Citizenship and Biodiversity Conflicts in Chiapas” Third World Quarterly 22: 1045-1061 (2001). Michael Brown, “Ethnobotany Blues” in Michael Brown, Who Owns Native Culture? (Harvard University Press, 2003) 95-143. ON RESERVE. Brent and Elois Ann Berlin, “Prior Informed Consent and Bioprospecting in Chiapas,” in Mary Riley, ed., Indigenous Intellectual Property Rights: Legal Obstacles and Innovative Solutions (Alta Mira Press, 2004) 341-363.IN DEPARTMENT CLASS TRADEMARKS: PROTECTING GROUPS, CULTURE AND ORIGINS? Janet Mc Gowan, "What's In a Name? Can Native Americans control outsiders use of their tribal names?" 18(4) Cultural Survival Quarterly 11-15 (1995).IN DEPARTMENT. Michael Brown, “Sign Wars” in Michael Brown, Who Owns Native Culture (Harvard University Press, 2003) 69-94. ON RESERVE. Warren Moran, “Rural Space as Intellectual Property.” Political Geography 12: 263 - 277 (1993). Online at http://www.yorku.ca/rcoombe/articles/moran.pdf ON RESERVE IN DEPARTMENT. L. Berard and P. Marchenay, "Tradition, Regulation, and Intellectual Property: Local Agricultural Products and Foodstuffs in France" in Valuing Local Knowledge (Washington: Island Press, 1996) 230-242. ON RESERVE IN DEPARTMENT. Christina Grasseni, “Packaging Skills: Calibrating Cheese to the Global Market” in Susan Strasser, ed., Commodifying Everything (University of Indiana Press, 2003). 259-288. ON RESERVE IN DEPARTMENT. CLASS A RIGHT TO CULTURAL DIVERSITY? Goldsmith, Ben. Cultural diversity, cultural networks and trade: international cultural policy debate. Media International Australia (Feb 2002) :35. (Volume no?). Hammett-Jamart, J. Regulating diversity: cultural diversity, national film policy and the international coproduction of films. Media International Australia 111: 46-62 (2004). 12