Intellectual Property and Traditional Cultural Expressions in a Digital Environment

In the face of increasing globalisation, and a collision between global communication systems and local traditions, this book offers innovative trans-disciplinary analyses of the value of traditional cultural expressions (TCE) and suggests appropriate protection mechanisms for them. It combines approaches from history, philosophy, anthropology, sociology and law, and charts previously untravelled paths for developing new policy tools and legal designs that go beyond conventional copyright models. Its authors extend their reflections to a consideration of the specific features of the digital environment, which, despite enhancing the risks of misappropriation of traditional knowledge and creativity, may equally offer new opportunities for revitalising indigenous peoples' values and provide for the sustainability of TCE.This book will appeal to scholars interested in multidisciplinary analyses of the fragmentation of international law in the field of intellectual property and traditional cultural expressions. It will also be valuable reading for those working on broader governance and human rights issues.

GERMANY: Creating New Property Rights on the Basis of General Legal Concepts - Without Limits?

In two cases recently decided by two different senates of the German Federal Supreme Court (Bundesgerichtshof, BGH), the following issue was raised: To what extent can the filming of sports events organized by someone else, on the one hand, and the photographing of someone else’s physical property, on the other hand, be legally controlled by the organizer of the sports event and the owner of the property respectively? In its “Hartplatzhelden.de” decision, the first senate of the Federal Supreme Court concluded that the act of filming sports events does not constitute an act of unfair competition as such, and hence is allowed even without the consent of the organizer of the sports event in question. However, the fifth senate, in its “Prussian gardens and parks” decision, held that photographing someone else’s property is subject to the consent of the owner of the grounds, provided the photographs are taken from a spot situated on the owner’s property. In spite of their different outcomes, the two cases do not necessarily contradict each other. Rather, read together, they may well lead to an unwanted – and unjustified – extension of exclusive protection, thus creating a new “organizer’s” IP right.

Transnational Law for Transnational Communities The Emergence of a Lex Mercatoria (or Lex Informatica) for International Creative Communities

Open Source Communities and content-oriented projects (Creative Commons etc.) have reached a new level of economic and cultural significance in some areas of the Internet ecosystem. These communities have developed their own set of legal rules covering licensing issues, intellectual property management, project governance rules etc. Typical Open Source licenses and project rules are written without any reference to national law. This paper considers the question whether these license contracts and other legal rules are to be qualified as a lex mercatoria (or lex informatica) of these communities.

Information as Property

Information is widely regarded as one of the key concepts of modern society. The production, distribution and use of information are some of the key aspects of modern economies. Driven by technological progress information has become a good in its own right. This established an information economy and challenged the law to provide an apt framework suitable to promote the production of information, enable its distribution and efficient allocation, and deal with the risks inherent in information technology. Property rights are a major component of such a framework. However, information as an object of property rights is not limited to intellectual property but may also occur as personality aspects or even tangible property. Accordingly, information as property can be found in the area of intellectual property, personality protection and other property rights. This essay attempts to categorize three different types of information that can be understood as a good in the economic sense and an object in the legal sense: semantic information, syntactic information and structural information. It shows how legal ownership of such information is established by different subjective rights. In addition the widespread debate regarding the justification of intellectual property rights is demonstrated from the wider perspective of informational property in general. Finally, in light of current debates, this essay explores whether “data producers” shall have a new kind of property right in data.

The International Law of Culture : Prospects and Challenges

This is a conference review of an event on the international law of culture, which took place in late May 2012 at the University of Göttingen, Germany. The review provides context to it considering the complex landscape of international initiatives of hard and soft law nature, which address culture and their impact on the environment, where cultural rights are to be exercised.

Cultural Diversity as a Concept of Global Law : Origins, Evolution and Prospects

“Cultural diversity” has become one of the latest buzzwords on the international policymaking scene. It is employed in various contexts – sometimes as a term close to “biological diversity”, at other times as correlated to the “exception culturelle” and most often, as a generic concept that is mobilised to counter the perceived negative effects of economic globalisation. While no one has yet provided a precise definition of what cultural diversity is, what we can observe is the emergence of the notion of cultural diversity as incorporating a distinct set of policy objectives and choices at the global level. These decisions are not confined, as one might have expected, to cultural policymaking, but rather spill over to multiple governance domains because of the complex linkages inherent to the simultaneous pursuit of economic and other societal goals that cultural diversity encompasses and has effects on. Accounting for these intricate interdependencies, the present article clarifies the origins of the concept of cultural diversity as understood in global law and traces its evolution over time. Observing the dynamics of the concept and the surrounding political and legal developments, the article explores its justification and overall impact on the global legal regime, as well as its discrete effects on different domains of policymaking, such as media, intellectual property and culture. While the analysis is legal in essence, the article is meant to speak also to a broader transdisciplinary public. The article is part of the speacial issue on ethnic diversity and cultural pluralism, which is available under the creative commons licence: http://www.mdpi.com/journal/diversity/special_issues/ethnic-diversity/.

Rezension zu: Inge Govaere and Hanns Ulrich (eds.): Intellectual Property, Public Policy and International Trade

The contemporary intellectual property rights (IPR) system is not a simple, smoothly working block of rules but is complex and full of ambiguities, and as many argue, imperfections. Some deficits relate on the one hand to the inherent centrality of authorship, originality and mercantilism to the ‘Western’ IP model, which leaves numerous non-Western, collaborative or folkloric modes of production outside the scope of protection. On the other hand, some imperfections stem from the way IPR are granted, whereby creators acquire a temporary monopoly over their works and thus exclude the public from having access to them. In this sense, it is often uncertain whether the existent IPR model appropriately reflects the precarious balance between private and public interests, and whether the best incentives to promote creativity and innovation - the initially stated objectives of intellectual property protection - are offered. The matter becomes still more complicated when one considers that the IPR system is not domestically contained but is globalised and strongly affected by rules at the regional and international levels. The question of whether the balance between private interests and public values is sustained within the international legal framework, epitomised by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), is precisely the topic of the book reviewed here. Review of Intellectual Property, Public Policy, and International Trade, edited by Inge Govaere and Hanns Ullrich, P.I.E. Peter Lang, 2007.

Intellectual Property and Traditional Cultural Expressions in a Digital Environment. Preface

In the face of increasing globalisation, there is a pressing need for innovative trans-disciplinary analyses of the value of traditional cultural expressions (TCE) that also suggest appropriate protection mechanisms for them. The book to which this preface belongs combines approaches from history, philosophy, anthropology, sociology and law, and charts previously untravelled paths for developing new policy tools and legal designs that go beyond conventional copyright models. It reflects also upon the specific features of the digital environment, which, despite enhancing the risks of misappropriation of traditional knowledge and creativity, may equally offer some opportunities for revitalising indigenous peoples' values and provide for the sustainability of TCE.

Global Cultural Law and Policy in the Age of Ubiquitous Internet

Digital technologies and the Internet in particular have transformed the ways we create, distribute, use, reuse and consume cultural content; have impacted on the workings of the cultural industries, and more generally on the processes of making, experiencing and remembering culture in local and global spaces. Yet, few of these, often profound, transformations have found reflection in law and institutional design. Cultural policy toolkits, in particular at the international level, are still very much offline/analogue and conceive of culture as static property linked to national sovereignty and state boundaries. The article describes this state of affairs and asks the key question of whether there is a need to reform global cultural law and policy and if yes, what the essential elements of such a reform should be.

Alpine Common Property Institutions under Change: Conditions for Successful and Unsuccessful Collective Action by Alpine Farmers in the Canton of Grisons, Switzerland

The protection and sustainable management of alpine summer pastures has been stated as a goal in Swiss national law since 1996, and direct payments from the state for summer pasturing have been tied to sustainability criteria since 2000. This reflects the increasing value of the alpine cultural landscape as a public good. However, provision of this public good remains in the hands of local farmers and their local common pool resource (CPR) institutions for managing alpine pastures. These institutions are increasingly struggling to maintain their institutional arrangements, particularly regarding the work needed to maintain the pastures. This paper examines two cases of local CPR institutions for managing alpine pastures in the Swiss Canton of Grisons that manifest different institutional developments in light of changing conditions. The differences in how these institutions reacted to change and the impacts this has had on the provision of the CPR are explained by focusing on relative prices, bargaining power, and ideology as drivers of institutional change that are often neglected within common property research. Key words: summer pasture management, institutional change, bargaining power, ideology