by Nina Paley
Thu, Apr 28th 2011 7:03pm
by Mike Masnick
Tue, Apr 26th 2011 3:36pm
from the you're-doing-it-wrong dept
This country has a deep and rich history of developing innovative products and groundbreaking inventions that have helped to shape our world. Intellectual property is one of America's greatest assets and protection of these assets is vital to our economy, our health, and our legacy.Thing is... the first sentence and the second sentence have little to do with one another. Our deep and rich history is not because of our intellectual property laws. In fact, much of our history involved very weak IP laws (some of which allowed us to industrialize faster). Recent studies, such as those by Eric von Hippel at MIT, have shown that the vast majority of productive innovation is done for reasons that have nothing to do with intellectual property laws. So why would Cole make such a statement?
Today, as we recognize the 11th Annual World Intellectual Property Day, we celebrate the creativity and innovation of American music, literature, film, art and the inventive spirit that have set this country apart. The growth of new technologies, increased broadband access to the Internet and global manufacturing distribution channels provide increasing opportunities to market American products and creative content around the world.Yes, and much of that had nothing whatsoever to do with intellectual property laws. In fact, much of it happened in spite of intellectual property laws. The whole film business was launched on the basis of trying to hide from Thomas Edison's patents.
Yet, on this day we must also recognize that there are those who exploit these same technological advances to profit illegally from the hard work of American authors, artists and inventors through criminal copyright infringement, trademark counterfeiting, trade secret theft, economic espionage, and other intellectual property (IP) offenses.Like the founders of Hollywood? Like Disney, exploiting our cultural heritage and then locking up those works?
Unfortunately, criminals rely upon American consumers to buy their counterfeit goods. According to recent research from the National Crime Prevention Council, most Americans do not fully understand the scope or consequences of intellectual property crime and are susceptible to being swayed by the lure of a bargain, especially in these tough economic times.Actually, multiple studies have shown that counterfeiting isn't really that big of a problem. It's not that American's don't understand the scope. It's that industries who benefit from excess gov't protectionism have massively inflated the actual problem and most consumers recognize that these concerns are bogus. They know when they're buying a fake purse, and no harm is being done to them or the original brand. The purchase is often aspirational in that they buy the counterfeit when they can afford it, knowing that when they get enough money, they'll buy the real version. In fact, studies have shown that massive numbers of counterfeit purchasers go on to buy the real thing within just a few years. You would think this info would be relevant. Why does Cole ignore it?
As chair of the Department's Task Force on Intellectual Property that Attorney General Eric Holder established last year, I know we must continue to work to change the perception that IP crime is risk-free and victimless through aggressive criminal enforcement of laws designed to protect the American public and ensure the quality of products reaching consumers. Intellectual property crime contributes to the loss of hundreds of thousands of jobs, costs our economy billions of dollars annually and exposes Americans to potentially dangerous products, affecting public health and safety and national security.Almost nothing in this paragraph is accurate. The "loss" numbers, in both jobs and dollars has been widely debunked. The studies mentioned earlier point out that in many, many cases it is a victimless issue. And, at most, this should be a civil issue between a rightsholder and an infringer. The government has no place in this.
The task force has sought to strengthen IP protections through an increased focus on domestic and international enforcement and better coordination with our state and local law enforcement partners. We've made significant strides to obtain convictions of online distributors of counterfeit pharmaceuticals; large-scale producers and smugglers of counterfeit goods ranging from luxury items to military-grade computer system hardware; distributors of pirated digital movies and music; and those who have misappropriated highly-valued trade secret information from American corporations.Note the conflation of very, very different types of issues. Also note the ignoring of the massive due process and First Amendment violations that happened in the process of seizing domains from those falsely accused. Gee... I wonder why.
The risk to the public of counterfeits is clear.No, actually, it's not. There are a few specific cases where there is a risk: genuinely fake medicines (not grey market imports) and counterfeit military & safety equipment. But those are very, very small issues. And yet they're used to give Cole's Justice Department a wide berth in stomping on people's basic rights, turning civil, non-commercial issues into bogus criminal indictments, and taking questionable steps that appear to contradict basic free speech and due process principles.
Though we have accomplished a great deal, we recognize that we cannot rest on what has been done. The attorney general and I are committed to continuing to do more and with your help, we will hold accountable these criminals, protect the American public and safeguard one of America's greatest assets.Please, don't. You're making things worse, not better. You're encouraging innovation to avoid the US and go elsewhere. You're making the US the laughingstock of the world by seizing domains and censoring the internet while pretending to be in favor of free speech. Innovation does not work by "protecting" anything. It's about enabling. And the DOJ is doing the opposite of that.
by Mike Masnick
Fri, Feb 11th 2011 12:38pm
us chamber of commerce
from the it's-all-about-the-protectionism dept
It asks the President to expand the role of the White House's IP Czar, whose existence mainly exists due to the Chamber of Commerce using totally debunked stats to claim that the job was necessary. And, of course, it was no surprise the other day when the IP Czar's first report was more or less a bullet point list of everything the Chamber of Commerce wants. It's as if they have their own office in the White House, so of course they want that expanded.
The report does not mention ACTA, but does mention the new, even more secretive and more ridiculous Trans-Pacific Partnership Agreement (TPP), which of course the Chamber of Commerce wants to include only "the highest IP standards." Along those lines, the Chamber of Commerce also wants the Feds to send more of its copyright cops around the world to enforce US copyright laws, and to put more enforcement pressure around the infamous joke known as the USTR's "Special 301" report (which is basically a way for the lobbyists to "launder" a list of countries they don't like, and have the USTR list them as violating US IP laws based on little more than what lobbyists claim).
Finally, of course, the Chamber of Commerce supports blatant censorship and a lack of due process, in praising efforts to censor websites without any adversarial hearing, just because there might be some infringement somewhere else, but that site links to it.
Notice a pattern? Basically, the Chamber of Commerce supports policies that act as protectionism for a few large US companies, no matter what the overall harm is to the rest of the economy. Protectionist policies harm the economy and the pace of innovation. Censorship and a lack of due process should be seen as an anathema to core values of the United States. It's a shame that an organization that often presents itself as being about supporting American values and capitalism goes in such an opposite direction to protect its own special interests.
by Mike Masnick
Tue, Feb 8th 2011 9:26am
IP Czar Report Hits On All The Lobbyist Talking Points; Warns Of More Draconian Copyright Laws To Come
from the oh-great dept
Given the level of regulatory capture, it's no surprise that Espinel's first report on the "progress" of her strategy reads like a checklist of what the big IP lobbyists wanted. Not surprisingly, the US Chamber of Commerce, who misled Congress to create this role in the first place not only cheered on this new report, but also urged Espinel and the White House to go even further in passing even more draconian, legacy industry-protecting legislation.
And that appears to be coming. Within the report, there's a note that new copyright laws are on their way "in the near future."
The U.S. Government must ensure that intellectual property laws keep pace with changes in technology and the practices of infringers. As part of a process initiated by the IPEC, Federal agencies reviewed existing laws to determine if changes were needed to make intellectual property enforcement more effective. The initial review began shortly after the release of the Joint Strategic Plan and was completed within 120 days. The IPEC will include legislative proposals identified in that review in a White Paper on legislative recommendations that the IPEC expects to submit to Congress in the near future.It's not difficult to read between the lines. Considering that it was US Chamber of Commerce lobbying that created this role in the first place, and now she's discussing new laws, to then see the Chamber of Commerce immediately announce it was "ready to work with Congress and the administration" on increasing IP laws, you can bet that the laws in question have already been written mostly by such lobbyists, and we should see them soon. Protectionism, protectionism all around.
That's not how to create innovation. It's how you prop up obsolete businesses at the expense of innovation.
The rest of the report, which is embedded below, just shows the sad state of affairs of industries who won't adapt and can't compete, abusing the legal process to put up barriers to new technologies, abuse the free speech and due process rights of those who actually innovate, and celebrate stagnation as a strategy for innovation. It's a depressing document all around. It celebrates the international joke that is the Special 301 report from the USTR. It mockingly celebrates "increased transparency" from an administration that supported the massively secretive process behind ACTA (which the document also cheers on), which only now we've confirmed was always about holding back developing nations rather than increasing innovation. Not surprisingly, the report cheers on the illegal seizures of domain names, despite the likely prior restraint and due process violations those seizures entailed. It ignores the international incidents created by seizing domains of sites declared legal in their home countries. And, of course, nothing in the report discusses new business models or how decreased IP enforcement has resulted in greater creative output, more opportunities for content creators, and new innovation throughout the world.
In other words, the report is a complete joke. Reports like this are incredibly frustrating, because they simply highlight how our government has been taken over by special interests who have no desire to actually improve the country, but merely to protect a few powerful lobbyists and the corporations that support them.
What bothers me the most, frankly, is that nowhere does the report make even the slightest attempt to support any of its assertions that greater IP enforcement is actually good for the economy. There are tons of evidence that this is not true, and yet Espinel repeats the claim as if it's proven fact. This is unfortunate because she does know better, but I guess appeasing special interests is more important than actually working to promote progress and improve the economy.
by Mike Masnick
Wed, Dec 1st 2010 3:56pm
from the protectionism dept
There's no actual justification for it. The purpose of copyright is to benefit the wider public by creating incentives for the creation of new works. Yet, the fashion industry is highly competitive and constantly churns out new and innovative works. In fact, the research into the fashion industry has shown that the industry thrives because of the lack of copyright. It allows much faster dissemination of ideas into the market place, including more choices at more prices, which is what helps create fads that drive sales. On top of that, it encourages designers to keep designing new works to get ahead of the next trend. There has not been a single study that has proven any actual "harm" from this lack of copyright -- just vague and misleading statements that pretend this bill is about stopping counterfeits, which are already illegal under trademark law.
So why is it moving forward? It's plain and simple: protectionism by the established players. If you look at the history of copyright expansion, you see the same story over and over again. A lack of copyright (or very weak copyrights) leads to much greater innovation in an industry... and then the leaders of that industry don't want to let new competitors in, so they seek greater and greater copyright protections. That's exactly what's happening here and the folks supporting it -- including the 19 Senators who voted to move the bill forward -- should be ashamed of themselves for simply kowtowing to industry protectionism.
by Mike Masnick
Tue, Nov 16th 2010 6:08am
from the yah,-ok dept
A few weeks back, I went to Hollywood to appear on a panel for the Filmmaker Forum event, all about "piracy." You can see a short clip of the panel here. One of the panelists was Kevin Suh, who has the title "VP of Content Protection" at the MPAA. Of course, just the fact that the MPAA has a position that involves "content protection" suggests that there's a pretty big problem with how the MPAA views where the market is heading (hint: protectionism is not going to get you very far). Kevin was extremely nice -- and we had quite a pleasant conversation prior to the panel. But, at one point, he made some assertions (not in the video) that seemed odd to me. First, he went on and on about how much money these new "digital locker" sites make, and then in the very next sentence said that Hollywood couldn't offer a competing service because it would make no money.
At one point, I challenged him on the idea that taking down these sites was effective, and he insisted that the sites that were taken down had stayed down, and no others had stepped up to take their place. While I don't follow these sites all that closely, I'd already seen that this wasn't true, as lots of our users like to send in tips about new sites popping up (or where those "downed" sites reappeared). And, in fact, the press is noting that at least one of the sites taken down went right back up days later.
But what's really troubling about the article that has that info, is that it focuses in on how the US government has pledged to continue to be Hollywood's copyright cops, based on questionable legal authority (this, by the way, is one reason why the government is so keen to pass COICA, which would give the feds some authority that they're lacking here). But the simple fact is that this is a huge waste of taxpayer money, trying to stop the unstoppable and protect the unprotectable. There are all sorts of great opportunities for better, smarter business models for the industry, and yet rather than explore those, we have VPs of protectionism, running to the government and getting them to run crazy, legally dubious domain name seizures that do little, if anything to help.
About the only good thing that I can think of is that more and more filmmakers are realizing this. Following the panel, I was (quite pleasantly) surprised by just how many filmmakers spoke to me about how ridiculous the MPAA's position on all of this is, and saying that it's time for the industry to actually compete. Unfortunately, the industry hasn't had to compete in so long, thanks in part to lobbying efforts by the MPAA, that the legacy players don't seem to know how to do so. That's why it's going to be the up and coming filmmakers that figure it out.
by Mike Masnick
Fri, Aug 20th 2010 6:31am
from the forward-or-backwards dept
"I'm not even slightly interested in saving the industry."And it got me thinking about understanding the mindset of "saving" an industry more deeply. The truth is, whenever anyone seriously (not mockingly) refers to "saving" an industry, invariably, they're really talking about saving a few legacy companies in that industry from whatever disruptive innovation is shaking things up. It's never actually about "saving an industry," because the "industry" almost never actually needs to be saved. The industry may be in the process of being changed (often radically), but that's not the same thing as needing saving.
What's telling is that, through all of this, you almost never hear start-ups talking about asking for help trying to "save the industry" that they're in. That's because they know "the industry" is just fine, and in all of the upheaval there's really tremendous opportunity. So, anytime anyone talks seriously about "saving" any particular industry, challenge them on what they really mean, and see if they're actually just talking about saving a few companies, rather than saving an actual "industry."
by Mike Masnick
Fri, Jul 9th 2010 6:40pm
from the didn't-see-that-coming dept
Now, as always, his position is deeply nuanced, and not as simplistic as the typical calls for US job protectionism. He talks up the importance of job "scaling" in the US economy:
Startups are a wonderful thing, but they cannot by themselves increase tech employment. Equally important is what comes after that mythical moment of creation in the garage, as technology goes from prototype to mass production. This is the phase where companies scale up. They work out design details, figure out how to make things affordably, build factories, and hire people by the thousands. Scaling is hard work but necessary to make innovation matter.First of all, I'm not convinced he's right that the scaling doesn't happen in Silicon Valley. The same day that Grove's column was released, Tom Foremski had a short post about the hockey-stick-like job growth at Silicon Valley's most popular companies, where even he worried that such scaling -- which does appear to be happening -- might "crowd out" other startups. So, we have Andy Grove saying Silicon Valley startups can't scale from an employment standpoint just at the same time the data shows that they still do...
The scaling process is no longer happening in the U.S. And as long as that's the case, plowing capital into young companies that build their factories elsewhere will continue to yield a bad return in terms of American jobs.
Scaling used to work well in Silicon Valley. Entrepreneurs came up with an invention. Investors gave them money to build their business. If the founders and their investors were lucky, the company grew and had an initial public offering, which brought in money that financed further growth.
But as we dig a bit deeper into the article, we find out what Grove's real concern is. It's not that jobs aren't scaling, but which kind of jobs are scaling. And, to Grove, the problem is that we're no longer scaling manufacturing jobs:
Today, manufacturing employment in the U.S. computer industry is about 166,000 -- lower than it was before the first personal computer, the MITS Altair 2800, was assembled in 1975. Meanwhile, a very effective computer-manufacturing industry has emerged in Asia, employing about 1.5 million workers -- factory employees, engineers and managers.I'm kind of surprised that Grove would make this argument. From David Ricardo, writing 200 years ago, forward, the concept of comparative advantage is pretty well-established. Now, there definitely are some recent critiques of the concept of comparative advantage, and one major concern is whether or not it really applies in a globalized world, but the general theory still seems valid: if it's more efficient and economical (other things equal) for manufacturing to take place in China, then it should actually make the US better off. Now, obviously, reality is more complex than theory, and there are other considerations as well, including human rights, quality, and even safety (lead in toys and poisoned toothpaste, anyone?). But, on the whole, that's not what Grove is talking about. Instead, his main worry seems to be that if we lose our manufacturing prowess in certain tech fields, it actually puts us behind the curve in important new fields:
There's more at stake than exported jobs. With some technologies, both scaling and innovation take place overseas. Such is the case with advanced batteries. It has taken years and many false starts, but finally we are about to witness mass- produced electric cars and trucks. They all rely on lithium-ion batteries. What microprocessors are to computing, batteries are to electric vehicles. Unlike with microprocessors, the U.S. share of lithium-ion battery production is tiny.Now, I will agree that this is a point that got me thinking. It certainly fits well with our recent post about how scientific knowledge advances, where the research has shown that those who aren't actively involved in a particular field simply can't understand that field enough to stay innovative or competitive in that field. So, the real question is whether or not the jobs that are being offshored are really the ones in areas where the US needs to be that knowledgeable... and also whether or not the knowledge transfer really is that complete. If, as is sometimes the case, the design work still really takes place in the US, but the manufacturing takes place in China, which bit of knowledge is more important?
That's a problem. A new industry needs an effective ecosystem in which technology knowhow accumulates, experience builds on experience, and close relationships develop between supplier and customer. The U.S. lost its lead in batteries 30 years ago when it stopped making consumer-electronics devices. Whoever made batteries then gained the exposure and relationships needed to learn to supply batteries for the more demanding laptop PC market, and after that, for the even more demanding automobile market. U.S. companies didn't participate in the first phase and consequently weren't in the running for all that followed. I doubt they will ever catch up.
I can understand where Grove is coming from. While many people still think that Intel's advantage was in its chip design, that was never really the case. It was always its manufacturing capabilities that put the company ahead. Intel's manufacturing expertise meant that its yield rates (effectively, the percentage of silicon that was successfully turned into a working computer chip) were always significantly higher than competitors, allowing Intel to produce more at a lower cost, and keep its margins higher. So, it's no wonder that Grove would focus in on manufacturing expertise as being key. But there is more to innovation than just manufacturing.
Grove reiterates the same point later in the article, but makes a big assumption:
Consider this passage by Princeton University economist Alan S. Blinder: "The TV manufacturing industry really started here, and at one point employed many workers. But as TV sets became 'just a commodity,' their production moved offshore to locations with much lower wages. And nowadays the number of television sets manufactured in the U.S. is zero. A failure? No, a success."But you could make the same argument with plenty of industries that went overseas, or were more automated, that didn't end up harming the US. The textile industry was once a huge domestic industry, but much of it has gone overseas, and because of that, we tend to have cheaper clothing for everyone. Again, there are issues there to be aware of, such as human rights and sweatshops -- something I'm not defending -- but it's not clear that jobs going overseas automatically means harm to the economy, as Grove implies.
I disagree. Not only did we lose an untold number of jobs, we broke the chain of experience that is so important in technological evolution. As happened with batteries, abandoning today's "commodity" manufacturing can lock you out of tomorrow's emerging industry.
Grove then challenges the "free market" orthodoxy by pointing to the growth of certain east Asian economies in the 70s and 80s that were largely due to heavy government involvement and planning:
Consider the "Golden Projects," a series of digital initiatives driven by the Chinese government in the late 1980s and 1990s. Beijing was convinced of the importance of electronic networks -- used for transactions, communications and coordination -- in enabling job creation, particularly in the less developed parts of the country. Consequently, the Golden Projects enjoyed priority funding. In time, they contributed to the rapid development of China's information infrastructure and the country's economic growth.Indeed, that's undoubtedly true. But Grove is playing a bit of a game with confirmation bias on this one. Yes, certain government mandates worked well for certain countries, but some of them also had governments force them to bet on the wrong technology. Japan bet on certain technologies (like HDTV) too soon, and discovered that they got leapfrogged in the market. Sometimes, it's absolutely true, a government can help an industry develop, but often it can push an industry down the wrong road. To ignore that is dangerous. In fact, we were just discussing how some of Japan's choices pushing certain industries have had long term negative consequences in terms of Japanese domestic efficiency and innovation.
Protectionism leads to perverse incentives that can absolutely work against long term growth and innovation.
Yet, Grove goes so far as to suggest that we should put a tax on offshoring and try to force companies to keep certain types of jobs in the US:
We should develop a system of financial incentives: Levy an extra tax on the product of offshored labor. (If the result is a trade war, treat it like other wars -- fight to win.) Keep that money separate. Deposit it in the coffers of what we might call the Scaling Bank of the U.S. and make these sums available to companies that will scale their American operations. Such a system would be a daily reminder that while pursuing our company goals, all of us in business have a responsibility to maintain the industrial base on which we depend and the society whose adaptability -- and stability -- we may have taken for granted.Yikes! Grove should certainly know that the history of trade wars -- even when you "fight to win" is not pretty for any of the countries involved in those wars. They lead to less growth, less innovation and higher prices. They're incredibly dangerous, and the unintended consequences do significantly more harm than good.
Besides, how do you pick the "good jobs" from the jobs we're actually better off offshoring. Nearly every day we hear stories about attempts by the US government to protect jobs in a particular industry. Just look at US telco policy or US copyright policy -- both of which are very much designed to prop up less efficient companies in the industry, at the expense of more innovative, more efficient upstarts. Protecting jobs comes at a cost to efficiency. If we always had a policy of "protecting jobs," then we never would have automated the telephone switching system, which put tons of "operators" out of work. But that also opened up massive new innovations, including the internet. I don't think anyone would argue that the jobs created due to more efficient telephone switching have so far surpassed the jobs lost from no longer needing operators to connect one party to another.
Yes, Grove has an important point in the middle of all of this, about the potential loss of key knowledge and expertise that is needed for the next generation of innovation, but he's cherry picked the other examples, without realizing the very real and very serious downsides to protectionism and to having government policy pick which industries (and which players in those industries) are "winners" and which are "losers."
In the end, the article is thought-provoking, and is at least making me reconsider some aspects on how we handle knowledge transfer for future innovation. But mostly the suggestions seem to go too far in heavy handed government involvement in propping up less efficient businesses, just to keep jobs local, even if it comes at the expense of future innovations that actually will (despite Grove's claims) create the jobs of the future.
Thu, Jul 8th 2010 10:26pm
from the a-european-perspective dept
A review of the Kenyan constitution has been undergoing for a long time, and only now has a final draft proposal for a new constitution been released. But, despite the stated aims of freedom, democracy, participation and the free exchange of ideas (pdf), the released draft seems far from that ideal: Kenya is taking the Euro-American route to heavier information restrictions, including more copyright, more patents and more private knowledge monopolies, instead of keeping their legal environment open to creativity, participation and sharing.
From the perspective of someone working with information policies in the European Union, I can only see this harming Kenyan interests. While many sub-Saharan African countries still have relative freedom with regards to information sharing, this is being diminished by pressure from external groups. Most prominently, American and European corporations. Moving the Kenyan legislation towards the European will shift power from Kenyan entrepreneurs to European big business. Ownership concentration is one of the most harmful tendencies we have seen with intellectual property rights in Europe.
What is more, I worry that this will damage my home turf. The complexity of international trade has made it almost impossible for any single country to pass any law into effect without it affecting other nations, and as long as nations around the world keep changing their laws to accommodate for restrictive innovation and creativity policies, we will find it difficult to see new art, communication and new businesses flourish.
Intellectual property rights are quickly morphing out of hand in the European Union. They're used to motivate breaches of freedom of speech, privacy of communication and proper judicial course. We've seen proposals enter and get approved by parliaments that wish to send people to jail or shut them off communication networks for listening to music, and laws that have made it very difficult indeed to be (or to remain) a small-scale entrepreneur.
These proposals are often pushed by very large and rich industries, but not always to their own advantage. In the industries that rely the most on patents, innovation is decreasing (pdf), and in the European Union we have a unique experience with the Database Directive that, while certainly creating more intellectual property rights, did not stimulate European economical development (pdf) or the European population. On the part of the music industry, they have managed to make their customers resent them.
Big business does not always know what it ought to want, and if legislators want to promote culture and innovation, my experience is they should try and do that instead of trodding down roads that already failed a trial and error test.
Kenya has previously only protected property in general, and not intellectual property in particular, leaving it up to the legislator to decide whether commodification of common cultural goods or knowledge heritage is appropriate or not. And while European and American politicians have started to discover copyright problems with fair use, orphan works and common cultural heritages, Kenya and other African nations have been urging for exceptions for education, libraries, general dissemination, higher access to medicines and more possibilities for small scale entrepreneurship (such as domestic innovation not consisting of state of the art technology, but adapted to the educational and economical development of a local and regional market).
Small scale businesses: opportunities and possibilities
Most regions in the world where the economic growth is the largest is where the intellectual property protection has been the lowest, or least enforced. These regions typically also have a thriving climate for small and medium-sized entrepreneurs (pdf).
Those considerations are sadly lacking in the European economic policies. While small and medium sized enterprises stand for 50% of the European economy, and employ more than 90% of the European population, in policy making they're made to be only worth their existance to the extent that they can grow or be incorporated in larger enterprises (pdf).
The tactics of making legislation that re-affirms the strong players' place in the market may be useful in the short-term, especially for the strong players. For economic development and the growth of a domestic industry without previous strong actors, it can't be. The effects may, in the worst case, make the Kenyan economy benefit the European economy more than it benefits Kenyans.
From the European perspective, such a course by Kenya would signal a success of the European legislative tactics and lock our economic development in with the strong players as well. A need for rejuvenation and adaption of the European economy to the time of instantaneous information transfer would fall on its head and turn European business practises into practises of channeling Kenyan gains into themselves.
But what about the community-protecting parts of the constitutional draft?
The reformed constitution also aims at protecting the traditional knowledge of Kenyan socities by introducing collective rights for cultural heritage. It's certainly experimental. It's not present in European constitutional culture to specify types of intellectual property and their extent in constitutions. Creating collective intellectual property rights hasn't been tried at all in Europe, to my knowledge. It would likely be an ineffective way of protecting Kenyan cultural heritage against trademarking and patenting in European and American economies. Intellectual property law is still based in the nation state so the Kenyan jurisdiction can't touch those who wish to exploit their traditional knowledge or genetic resources. Considering the few advantages I see with such a right, I would be cautious about introducing it into a constitution.
The European experience to me is also that double intellectual property rights protection is more likely to stay double, rather than negate the effects of one or the other.
A Kenyan collective right is likely to be applicable only where a European company with a trademark or patent in Europe is active also on Kenyan soil, or to the extent that the Kenyan collective can withstand law suits. Neither scenario is likely, and once again, from where I'm standing, keeping the information flows as open as possible is that which will bring the greatest remedies to the cultural robbery plight.
Intellectual property law is still based in the nation state, but is very much shaped globally. A reform in one part of the world does not go without consequences in other parts, but, contrary to what some may imagine, the effects are rarely beneficial to either party.
An approval of the intellectual property rights provisions in the Kenyan constitution could come to be an example of that.
At best, they will not benefit European and American industries so much that they completely strangle Kenyan innovation, and they will not lock Europe and America on the path to democratic failure induced by our own intellectual property law reforms. At worst, and as often happens, a law reform in Kenya will create a precedent for reform in the entire East-African region, and become part of a global web that will lock in East-Africa, Europe and the Americas in an information policy of law suits and power concentration, harmful to creativity as well as innovation.
Hopefully, I have provided a European perspective that may make Kenyan policy makers consider the implications of reforming the constitution in this way one more time.
by Mike Masnick
Fri, Jul 2nd 2010 6:34pm
Be Careful What You Wish For: Now That Kenya's Been Pushed To Recognize IP, It's Starting To Protect More
from the look-at-that dept
What's that going to mean in practice? Well, a Kenyan lawyer's discussion of the new section of the constitution suggests that this is not about creating incentives for greater creation or innovation. No, instead, it's about trying to put a price tag on anyone else building off of Kenyan culture:
This provision seeks to ensure that Kenyan communities are protected from exploitation and the loss of elements of their cultural heritage to the wider world. Examples of such loss include the patenting of the kiondo -- a hand-woven bag made from sisal with leather trimmings, originating in Kenya and mostly associated with the Kamba and Kikuyu communities -- by an unknown Japanese entity; and the attempted registration of the word 'kikoi' as a trademark by a company in the United Kingdom. A kikoi is a traditional cloth garment mainly found in East African countries such as Kenya and Tanzania and is used as a wrap by women.Really? So Kenya wants to patent a design of a traditional bag so that no other country can make it? That's not intellectual property, whose purpose is to create incentives for new creativity and innovation. It's blatant protectionism against foreign competition. And then taking control over a word used in a totally different country? Again, that has nothing to do with creativity or innovation. So, now that the western world has pushed Kenya to "recognize" intellectual property, rather than understanding the actual purpose of intellectual property, it seems to be embedding the concept into its constitution in a manner that has nothing, whatsoever, to do with encouraging innovation or creativity.