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Will The Vulcan Salute Live Long And Prosper? The Rush To Lock Up 'Cultural Expression'

from the sorry-spock dept

What does Leonard Nimoy's "Vulcan salute" have to do with European newspaper headlines? They both might one day be regulated by new international intellectual property rules, if some have their way. One might think that what constitutes "intellectual property" is set in stone, but it isn't.  Around the world, different interests are lobbying for governments to create new types of intellectual property all the time.

As DisCo has covered before, news publishers in Europe and elsewhere are currently pushing for the creation of new IP rights in newspaper headlines, so that online sites can be forced to pay for the privilege of quoting or linking to news coverage. Spain and Germany have already created these rights, and there is pressure in Brussels for a pan-European rule.

At the same time, for more than a decade there have been efforts within the World Intellectual Property Organization to create rights in "traditional cultural expression" (which, as explained below, may include the hand gesture on which Leonard Nimoy based the Vulcan salute). Some indigenous communities are distressed about the commercial exploitation of their folklore and other forms of cultural expression by "outside" entities. In a desire to (a) prevent uses that they believe are disparaging and (b) regain control over an important part of their identity, these communities have lobbied for a treaty that would require the creation of intellectual property rights in "traditional cultural expression."

Concerns have been raised about the scope of the draft treaty. If adopted in its current form, critics say, the treaty could interfere with cultural life around the world, pulling out of the public domain material that is incorporated in countless novels, paintings, films, sculptures, operas, and other musical compositions. This is because these works are based on stories, legends, dances, rituals and other forms of expression that the treaty could protect without a limitation on term.

How does this relate to Leonard Nimoy's Vulcan salute? The famous actor's death last week provoked extensive discussion of his contribution to popular culture, including the famous Vulcan salute used by his character Spock in the Star Trek television series and movies. The Vulcan salute (hand raised with the palm forward and the thumb extended, while parting the fingers between the middle and ring finger) could violate the exclusive rights that a treaty on traditional culture expression would create. This is because Nimoy, according to his autobiography, based the Vulcan salute on the hand gestures in the priestly blessings he saw in synagogue as a child.

The priestly blessing is an elaborate ritual performed during the Jewish worship service by men who believe they are descendants of Aaron, the High Priest and Moses's brother. These men are referred to as Kohanim (Hebrew for "priests"). At the beginning of the ritual, the hands of the Kohanim are washed by the descendants of the tribe of Levi, the Levi'im. The Kohanim then remove their shoes and stand up in front of the congregation. They cover their heads with their prayer shawls, turn towards the congregation, and raise their hands (underneath the shawls) in what is now popularly referred to as the Vulcan salute. With the fingers and thumbs spread in this manner, each hand looks like the Hebrew letter shin, which is the first letter of the word "Shaddai," a name for God. The Kohanim then recite the words of the priestly blessing set forth in the book of Numbers: "May the Lord bless you and guard you; may the Lord make His face shed light upon you and be gracious to you; may the Lord lift up His face to you and give you peace." (If the words sound familiar, that's because the song "Sabbath Prayer" in Fiddler on the Roof is based on them. It's also Solemn Blessing #10 in the Roman Missal used by Catholics.)

Although the words of the priestly blessing derive from the Old Testament, and thus are over 2,500 years old, the hand gesture probably developed later. It is described in the Shulchan Aruch (Hebrew for "Set Table"), a codification of Jewish law first published in 1565, thus indicating that it was in wide use 450 years ago. Currently, the priestly blessing is conducted daily in traditional Sephardic congregations, and on holidays in traditional Ashkenazic congregations.

Although no one seems to have objected to Nimoy's adaptation of the gesture for his Vulcan character, the hand gesture of the priestly blessing may nevertheless fall within the scope of the draft treaty. Traditional cultural expression includes actions such as ceremonies and rituals. The treaty's protection would extend to the traditional cultural expression created, expressed, and maintained, in a collective context, by the treaty's beneficiaries. The class of beneficiaries remains in flux. The treaty refers to "indigenous peoples" and "local communities and nations" without defining any of these terms. These terms may encompass traditional Jewish communities. Moreover, the treaty appears to allow national law to determine which communities are beneficiaries. One could easily imagine Jewish communities in some countries (e.g., Israel and the United States) successfully lobbying for the treaty's protection.

Under the treaty, the rights in the traditional cultural expression would be collectively administered by a "competent authority" for the benefit of the members of the beneficiary community. The competent authority would have the authority to license the use of traditional cultural expression and distribute any resulting compensation. Although Nimoy was Jewish, it is unlikely that the treaty would have permitted him to use the hand gesture in a non-traditional way such as the Vulcan salute in Star Trek without the approval of the competent authority. And the treaty certainly would not have permitted the unauthorized use of the hand gesture by any Vulcans played by non-Jewish actors. The current draft of the treaty does not include a grandfather clause, so if the treaty were adopted in the future, the competent authority in each country would be able to prevent the further dissemination of existing Star Trek works containing the Vulcan salute, as well as the use of the salute in future films.

Folktales permeate modern Western culture, from Disney films to Lord of the Rings to the Twilight series to Wagner's Ring of Nibelung to Tchaikovsky's Swan Lake. Thus, it is no surprise that the treaty on traditional cultural expression has little support among the developed countries and WIPO is unlikely to adopt it soon, if ever. But this just highlights the fact that what receives intellectual property protection is a policy choice, rather than a reflection of natural law. As a result, types of protection vary across countries. For example, the "ancillary rights" that restrict newspaper snippets in Europe have received no traction in the United States. Similarly, Congress rejected the attempt by large publishers to import the EU Database Directive's protection for non-original databases a decade ago. This policy decision has allowed U.S. researchers to engage in enormously productive text and data-mining, which the Database Directive prevents their colleagues in the EU from performing.

Just as policymakers were confronted with a choice over creating database rights, they may one day be presented with a similar choice about news snippets, or hand gestures, and the choices they make could have a considerable effect on culture and communication worldwide.

Republished from the Disruptive Competition Project


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  • icon
    OldGeezer (profile), 6 Mar 2015 @ 6:24pm

    I have a hand gesture for them. It involves an extended middle finger. Is there going to be some claim on flipping the bird?

    reply to this | link to this | view in chronology ]

  • icon
    mb (profile), 6 Mar 2015 @ 6:41pm

    Perfect!

    This is the perfect example of how far down the slippery slope we have come, and is the perfect illustration for why we need to relax intellectual property laws, not restrict them further.
    Under this kind of foolish money grub, we will completely shut down the entire music and film industry. It will make clothing illegal, but of course, it will also outlaw nudity. The letter 't' will also become illegal.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2015 @ 7:34pm

    Holy crap. Sometimes humanity just deserves a good smack upside its collective head.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2015 @ 7:43pm

    hmmm

    "Spain and Germany have already created these rights,"
    Speaking as a German I might add "and have been ignored by everyone"

    But I don't want to digress from the real part everyone should take away from this story: There are people who do the Vulcan hand sign and they might not even know about Vulcans. That's how influencial Vulcans are!!!

    reply to this | link to this | view in chronology ]

  • icon
    Gracey (profile), 6 Mar 2015 @ 8:15pm

    WTF ... not much bloody else to say, is there?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2015 @ 9:10pm

    Looks like the Nazis won WW2 after all, and our ancestors died in vain if THIS is their descendents' future.

    reply to this | link to this | view in chronology ]

  • icon
    Blackfiredragon13 (profile), 6 Mar 2015 @ 9:28pm

    God damn

    I hate this planet. One day after we destroy earth with orbital bombardment and alien archeologist find the remains of our worlds obsession with ip, copyright, ect, they'll think we're killed ourselves in a mass suicide, kool-aid cult style drink. Or something.

    reply to this | link to this | view in chronology ]

  • identicon
    Fffff, 6 Mar 2015 @ 10:12pm

    Good fucking god. We need to weaken IP, not expand it. How is it that so much of the Internet despises Intellectual Property in its current form yet we seem to have shit-all for influence in any political arena?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2015 @ 11:18pm

    These types of twats would charge the air they dont own if they thought they could get away with it

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2015 @ 11:35pm

    Um... Thanks?

    Thanks TD, for leaving us with such a cheery post to savour over the weekend ;)

    To highlight reactions to the topic over just the first few hours it's been up: a single-finger salute, a 'holy crap,' a WTF, a Nazi ref, a 'god damn, I hate this planet,' and a 'good fucking god.'

    And it's not even about the NSA...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2015 @ 2:19am

    The idea of Intellectual property is being warped into one of the most destructive of ideas when applied to culture.

    reply to this | link to this | view in chronology ]

  • icon
    Seegras (profile), 7 Mar 2015 @ 3:11am

    This would kill culture

    Those 'indigenous communities are distressed about the commercial exploitation of their folklore and other forms of cultural expression by "outside" entities.' will be even more distressed if this comes through.

    Because then, nobody else but them will be allowed to play around with their cultural heritage, leading to decline and finally extinction of their culture. In the end, all the cultural heritage of some group (let's say "Hopi") will be in the hand of some kind of "steward", most probably some kind of company, and nobody else will ever hear of it again, except when somebody uses some element by pure chance, in which case he will be sued.

    EOC

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 7 Mar 2015 @ 6:16am

      Re: This would kill culture

      If it weren't for the larger harm from it, I'd almost support the idea, as it seems to be a self-fixing problem.

      "You want to 'protect' your culture by acting as gatekeeper for it? Knock yourself out, 'protect' it right into the ground, and a couple of decades from now, when no-one has any clue or interest in what you're 'protecting', you can pat yourself on the back for a job well done."

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2015 @ 3:25am

    Corporape

    Look on the up side: It's a value add...

    reply to this | link to this | view in chronology ]

  • icon
    justok (profile), 7 Mar 2015 @ 3:29am

    Live long and prosecute

    reply to this | link to this | view in chronology ]

  • identicon
    tufloss, 7 Mar 2015 @ 6:10am

    Creating a way to repress

    This is far worse than just preventing use in popular culture.

    Depending on who the "competent party" for each culture group is determined to be, this could easily be abused to silence or try to shut down a splinter group.

    Some Jews could theoretically be forbidden from using this hand symbol if the "competent party" doesn't like their specific branch of the religion (or at least have to deal with the court cases which result, costing them money, time, and frustration.)

    One group of Christians could try to control the "Lord's Supper" and harass any other churches they don't like who try to implement it. etc.

    This could quite easily become a tool of oppression against the very peoples it is meant to "help"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 7 Mar 2015 @ 6:47am

    What I see...

    ...when I look at the painting of the last supper is...twelve Christians and a Jew.

    Understanding that all three of those 'major' religions come down from Moses, and that the god they worship is the same god, one has to wonder about all the strife surrounding religious differences.

    Makes me wonder as well if 'control' is a genetic disability and if there is a way to engineer it out of existence. It has raised its ugly head in areas far diverse than just religion.

    Take the blue pill or the red one?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2015 @ 7:55am

    THIS could be used to censor movies, drama,s online video,
    take down a video ,
    cos it offends a particular group,
    muslims ,christians etc
    its a really bad idea,
    and who decides on content,
    when a film, drama might feature 2 or 3 different ,
    ethnic groups,
    eg idian/muslim jewish/american etc

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 7 Mar 2015 @ 8:27am

    It is a serious mental illness that people feel a need to hoard money. To the point where they have more money than they know what to do with, but they have a sick desire to always hoard more and more by any means they can.

    reply to this | link to this | view in chronology ]

    • identicon
      Pragmatic, 9 Mar 2015 @ 6:53am

      Re:

      Yep. That's the thing I rail against, Padpaw. And they scream "But property rights!" when we call them on it.

      At least let's treat people fairly so the rich have no advantage over the poor. In this case, there wouldn't even have to be a "competent authority" to claim a controlling interest on the imaginary property, just a big fat war chest and a stack of copy-pasta nastygrams to send out. Let's not be giving them more tools to oppress us with.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2015 @ 10:09am

    Next, intelectual property on thoughts, so guys and gals, limit your intellectual intellect right now, get a head start on evreyone else, we'll be laughing to the bank, assuming we have the intellect

    reply to this | link to this | view in chronology ]

  • identicon
    andyroo, 7 Mar 2015 @ 12:04pm

    I have to laugh

    I can only imagine what people would have to say about the nazi salute coming back into use worldwide as it is a religious gesture before it was a nazi gesture.Right now it is illegal to do the salute but with this law it would become not only legal but a right for the religion it comes from, which i am sure all current nazi types would join immediately after this law was passed, not that it will pass, i would hope that no judge would ever consider it as it is just too far reaching and ignores basic human rights.

    reply to this | link to this | view in chronology ]

    • identicon
      AnonymousE, 8 Mar 2015 @ 11:24am

      Re: I have to laugh

      ... and ignores basic human rights.
      But you're completely ignoring my natural and basic human right to make money off you while I sit back and do nothing.

      WHY do you discriminate against me so? What are you, a freeloader?

      reply to this | link to this | view in chronology ]

      • icon
        Padpaw (profile), 8 Mar 2015 @ 12:33pm

        Re: Re: I have to laugh

        You must be suffering from the serious condition known as affluenza

        the description of such as recognized by the court system I kid you not. indicating that behavioural problems were influenced by a troubled upbringing in a wealthy family where privilege prevents a person from grasping the consequences of his actions.


        This is an actual thing as depressing as that sounds.


        some idiot teenager killed 4 people in a drunk driving accident and the judge let him off because he is rich, and suffers from affluenza.

        reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 7 Mar 2015 @ 12:16pm

    This is an issue NOW?

    I'd think it would have been an issue when it first surfaced, or when writers were adding in live long and prosper into the dialog. Not when the original Vulcan-playing actor dies. By now, many characters who are not Spock (including Darth Vader from Vulcan) have displayed the vulcan salute. No complaints yet. But when Spock dies, suddenly it's a big issue?

    Sorry, it's part of mainstream in fact it's bleeding out from trekkie culture into general nerd culture, probably thanks to its use in Big Bang Theory. It's also part of the Nerdfighter Salute.

    In the meantime heart and hand for Caesar!. Should I trademark that for when the Terran Empire gets going?

    reply to this | link to this | view in chronology ]

  • icon
    Ryan (profile), 7 Mar 2015 @ 6:37pm

    In a desire to (a) prevent uses that they believe are disparaging and (b) regain control over an important part of their identity, these communities have lobbied for a treaty that would require the creation of intellectual property rights in "traditional cultural expression."


    And

    Although no one seems to have objected to Nimoy's adaptation of the gesture for his Vulcan character, the hand gesture of the priestly blessing may nevertheless fall within the scope of the draft treaty. Traditional cultural expression includes actions such as ceremonies and rituals.


    So, does it then also apply to the straight arm salute? Y'know... like the Roman Empire and stuff?

    This in no way can end well...

    reply to this | link to this | view in chronology ]

  • icon
    Niall (profile), 9 Mar 2015 @ 6:26am

    Components matter

    So far everyone is missing an important link to copyright - when does an element become small enough not to be protected any more? Given the elaborate nature of the original ceremony, and the limitations of who is able to actually participate in it (and where), it would be extremely hard to try to 'copyright' a tiny derivative of it that is a 'simple' body movement. Kind of like trying to limit anyone using the character 'shin'.

    Also, won't someone think of poor Mork!

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 9 Mar 2015 @ 8:49am

    The fastest way to irrelevancy

    I can't think of a faster way for a culture to dive into obscurity and therefore irrelevancy than to say that the symbols of that culture cannot be used without permission.

    reply to this | link to this | view in chronology ]


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