Copyright 1995 Harry Hillman Chartrand
RÉSUMÉ: Dans un monde après-guerre froide, la compétitivité dans une économie globale basée sur la connaissance requiert un meilleur arrangement sur la manière dont l'on traite la connaissance en tant que propriété dans les différents voisinages du village global. L'auteur indique les grandes lignes sur les traditions du droit de propriété intellectuelle dans les pays industrialisés, les pay socialistes, le tiers monde et le quart-monde.
One noted author, Samuel Huntington in "The Clash of Civilizations?"3 argues that global conflict based on ideologies has been replaced by the clash of cultures. He suggests it will be where the "tectonic plates" of different cultures meet that conflicts will erupt. The chaos in the Balkans, where Catholic Croats, Orthodox Serbs and Moslem Bosnians are at each others throats, lends weight to the argument.
Another author, Robert Kaplan in "The Coming Anarchy"4 argues national security in the sense of defending borders is outdated. He argues no one lives in the countryside any more. Borders are lines on a map. Everyone lives in cities. For the first time in history, the majority of humanity is "civilized". It is in cities that the tribes -- old and new -- are gathering; tribes that pose the real threat to national security. Whether it is street gangs of south Los Angeles, or of St. James Town in Toronto, or of Mogadishu in Somalia, low grade urban conflict between tribes of urban barbarians threatens the very foundations of the post-modern nation state.
At about the same time these geopolitical scenarios were cast, the "information superhighway" entered the popular imagination. On the one hand, this electronic gateway opens onto Marshal McLuhan's pastoral "global village". On the other hand, the "net" threatens a cybergothic nightmare chillingly charted by William Gibson in his novels Neuromancer, Count Zero, Mona Lisa Overdrive, and Virtual Light.5
In Gibson's version of the future, the mind's eye fills with swirling multimedia, merging and mutating in a consensual hallucination called "cyberspace". This "virtual reality" rushes forward fueled by techno-greed for bits and bytes. Hackers and "console cowboys" fight for the high ground in wars for encrypted information. And in this war individuality and privacy erode before the ceaseless search for power and profit by a techno-elite who know which buttons to push while the rest of humanity cannot program a VCR.
Another information-based scenario emerges from the World Competitiveness Report published annually by the World Economic Forum and the Institute for Management Development in Geneva, Switzerland. This scenario is summed up as: "competitiveness in a global, knowledge-based economy".
Competitiveness has, of course, always been with us. Contemporary usage, however, extends traditional mass market price competition to embrace "working smarter" in response to consumer demand for higher quality, more customized goods and services, globalization and technological advance.
Competitiveness promises profitable and progressive industries, more satisfying jobs, higher salaries and higher tax revenue collected at lower rates for social investment in deficit retirement, education, health, infrastructure and welfare. It also promises to make one's country, community or company "top dog" in a confusing post-Cold War world.
Competitiveness is usually expressed in sports metaphors. Expressions like "skating where the puck is going, not where it is" captures its anticipative nature and its sports origins.6 In this game, some win and some lose in an apocalyptic "us/them" conflict deciding the destiny of our children, our communities and our country.
The concept of global competitiveness has quenched the last embers of the revolution of rising expectations. Fear of job loss has smothered hopes of citizen consumers and workers in North America. Instead of George Bush's "kinder and gentler society", we live in fear of downsizing, "foreign devils", obsolescence, privatisation, redundancy and technological displacement. This alternative future threatens:
In this note I will explore some aspects of the information-future scenarios. Specifically I will examine the global knowledge-based economy and the nature of intellectual property in the four neighborhoods of the global village.
The First World includes member countries of the Organization for Economic Cooperation and Development (OECD). These are advanced industrialized countries with well-developed market economies enjoying political democracy.
The Second World includes countries of the former Communist Bloc which, until the collapse of the Soviet Union, formed a bloc parallel to the OECD called COMCON. They had one-party political systems and command economies.
With the breakup of the Soviet Union most have, more or less, tried to adopt political democracy and to introduce market economics. Only North Korea and Cuba maintain command economies. China, and more recently Vietnam, by contrast, retain the communist monopoly of political power but have adopted a more or less market economy. Nonetheless, the Second World still exists. It has relatively high levels of higher education and advanced technology in selected sectors, particularly defence. But it also has underdeveloped democratic and market institutions as well as antiquated communications and transportation infrastructure.
The Third World includes countries of the "South", i.e. the southern hemisphere. They are politically diverse. Some are political democracies with market economies; some are authoritarian; some are ruled by military regimes. The Third World tends to rely on natural resources and cheap labour.
The Fourth World includes native or aboriginal peoples of the Old and New Worlds. They live in northern Europe, i.e. the Lapp or Suomi people; in Asia, i.e. so-called tribal or nomadic peoples; in Australia, i.e. the "aborigines"; and in both North and South America, i.e. the Amerindians, including those of mixed blood such as the Metis peoples of Canada. Essentially they have been dispossessed by colonization and modernization.7
But basic questions have not been asked. Questions like: what is the knowledge-based economy? Beyond obvious knowledge industries like computers and software, all industries from farming, forestry and fishing, to automobiles, mining and motion pictures are extending their horizons to markets around the world. They increasingly cross borders, speak different languages and negotiate with sensitivity to other cultures and ways of life. They are often part of multinational teams and partnerships. They sell as much there as here. It is less and less possible to be just an engineer or an executive. More and more, it is necessary to be an engineer who speaks Mandarin or an executive with real world experience of Brazil.
A global knowledge-based economy thus involves more than competitiveness in natural sciences and engineering. Cultural knowledge including languages, religions and ways of life play a critical and often interactive role with physical technology in the successful innovation and marketing of goods and services. And cultural goods and services themselves are becoming a major part of international trade.
A characteristic of cultural goods and services is that they are carriers of "values" rather than utilitarian function like a coffeepot, automobile or bank account. The importance of "values" is apparent in the ongoing debate about "cultural sovereignty". One side argues that national and regional identity is based upon a distinct set of values embodied in cultural goods and services. Even in the United States, some are now raising this argument as American cultural enterprises are increasingly being acquired by foreign interests.
Some point to the rising tide of regionalism within formerly unified states such as the Soviet Union and Canada as evidence of the importance of cultural sovereignty. Regional cultures, or the "little sisters" contend with an homogenizing, commercial, global "Big Brother" culture.
The other side of the debate is made by those who argue for the "universality" of human values. They contend that experiences shared on a global scale through communications media will eventually transcend differences among citizens of separate nations or regions. Some observers suggest this vision is becoming a reality and point to developments in the former Soviet Union, Eastern Europe and China as responses to values of freedom, dignity and prosperity transmitted through networks of global mass media and communications.
The vehicle for transmission of these "global values" is the international media conglomerate with international interests in television, film, music, video and print media. The five largest firms had combined revenues of $45 billion in 1988, accounting for 18% of the total $250 billion worldwide media industry.8 While only one is American-owned, after defence products the second largest net export of the United States is entertainment programming.9
Know-how refers to knowing how to do things, e.g. how to organize a construction project. Know-how is held by employees. Generally know-how is protected by contract legally binding an employee to secrecy. When a corporation or government finds its secrets have been betrayed legal recourse is available through the courts. Sometimes, for example when a senior executive of General Motors moved to Volkswagen, it may not be possible to insure the secrecy without, in effect, lobotomizing an employee.
In William Gibson's world of Neuromancer, corporations take protecting their knowledge investment in employees to a frightening conclusion, i.e. by implanting "neural bombs" in the brains of employees. If loyalty slips, the bomb goes off killing or mentally maiming the employee.
Ritual is practiced by secret societies in the First, Second, Third and Fourth Worlds, and has traditionally been kept secret. Knowledge of rituals symbolizes entry into the secret society.10 Secrecy can be achieved through esoteric or metaphoric language or by restricting it to one individual in each generation and exhibiting it only at initiation of new members.
Until the recent round of the General Agreement on Tariffs and Trade (GATT), IPRs were not subject to formal international trade negotiation. Rather, intellectual properties were subject only to international conventions such as the Berne and Rome Conventions concerning copyright. These conventions require "national treatment", i.e. treat foreigners the same as nationals.
Conventions do not, however, require harmonization of rights granted by different countries. Accordingly, if a given nation chooses to limit protection for its creators, then no greater protection is available to foreigners. Furthermore, a number of countries, including many former Soviet Bloc countries, have not yet or only recently signed international conventions and are not therefore obliged to protect rights of foreign creators. Weak domestic laws and refusal to sign international conventions has permitted widespread piracy and copyright infringement, particularly in Asia and the former Eastern Bloc.
The American Association of Publishers now has a whole division dedicated to piracy. In recording, the International Federation of Phonogram and Videogram Producers estimates that 20% of sales in Italy are pirated; 10% in France, 6% in the USA and 1% in Canada. With respect to broadcasting, several Caribbean countries are using U.S. and Canadian satellite signals and off-air video tapes as a major part of their national broadcasting services -- without payment of royalties.
With respect to business software, the Washington-based Software Publishers Association estimates that in 1994 piracy cost more than $8 billion to U.S. and other firms.11 The biggest offenders were China (98% of all business software was pirated), Russia (95%) and Thailand (92%). Even rock and roll merchandise is subject to piracy.12
The growing economic significance of intellectual property is reflected in the hard-headed American position leading up to the Canada-U.S. Free Trade Agreement; the similarly tough U.S. posture in GATT discussions; genuflection of newly industrialized Asian tigers to American interpretation of international conventions; and the recent capitulation of China to the U.S. IPR position.13
From video piracy to art fraud; from trademark and patent infringement to copyright abuse and theft of registered industrial designs -- the American government has demonstrated that international competitiveness increasingly depends on abstract intellectual properties, the economic rights associated with them and the ability to legally enforce these rights.
Legal systems are the product of specific cultures with different and distinct histories and traditions. And in spite of some attempts to standardize intellectual property rights, e.g. under the General Agreement on Tariffs and Trade (GATT) and the North American Free Trade Agreement (NAFTA), each nation retains sovereign right to define intellectual property within loosely defined limits of "national treatment".
There are two distinct intellectual property rights traditions. These are Anglo-American common law and European civil code.
In 1476 the printing press was introduced into England by William Caxton. By the early sixteenth century, two trades dominated the industry: booksellers or stationers many of whom were vertically integrated as printers, and independent printers.
At the time, the Crown's concern about religious and political censorship was growing more acute. By royal charter in 1557, the Stationers' Company of London was created and granted exclusive rights. In effect, the Tudor monarchs began to grant to approved printers the right to copy approved works, i.e. copyright. Thus, the roots of copyright are censorship and Crown grants of industrial privilege such as those to the Hudson's Bay Company and the East India Company.15
The first formal copyright law, the Statute of Queen Anne, was passed in 1710. For the first time, copyright was conferred on the author of a work. Nonetheless, the owner of copyright was almost always the bookseller.16 It was not until 1775 that the House of Lords supplanted the common law of printing rights in favour of the author.17
Thus the underlying concept of copyright is monopoly, first granted to printers, then to booksellers and only later to individual creators. In this tradition there is a need to protect the public from the power of the artist. Furthermore, copyright is treated as a commodity to be bought and sold. In effect, the rights of the artist are considered "a bounty" granted through the patronage of government.
Contrary to "moral rights" arguments that intellectual property is the most personal of all property and should therefore be better protected, in the Anglo-American tradition creators' rights are more limited and more easily alienated than other forms of property.
The European edifice of creators' rights rests on two pillars: economic rights and moral rights. Economic rights allow the creator to assign or license to others the right to use the work. These are the principal means by which a creator reaps profit from the work. Moral rights grant the creator continuing control over the work despite its exploitation. In this system, the creator is front and centre; later exploiters like publishers, motion picture and recording companies are secondary players and stand in the wings.
The difference in the "spirit of the law" -- copyright in English common law and authors' rights in the civil code -- can be demonstrated by analogy with recent proposals to incorporate "a right of native self-government" into the constitution of Canada. The government proposed that some form of self-government for native peoples be incorporated within ten years -- its limits to be defined by Parliament.19
Amerindian leaders reject this proposal because they have an "inherent" right to self-government: they are a free and independent people who signed treaties, as equals, with the Europeans during colonization. Copyright is like the government's proposal: a right is granted through the patronage of the government and can be limited or withdrawn at the government's pleasure. The Amerindian position is like authors' rights: the author has an inherent and inalienable right to his or her creation.
Thus the battle between the French and Americans over intellectual property in the GATT negotiations reflects not just "nationalist" animus but a clash of legal philosophies. The U.S. wants Europe to extend moral rights of individuals to corporations. So far the Europeans have resisted.
What both traditions share is the idea that the individual is the source of new knowledge and hence intellectual property. The difference is whether rights of an individual can be extended to a corporation which in the Anglo-American common law tradition is, as a legal fiction, considered an individual.
In conversion of Second World command economies to a market system, lack of traditional private property rights has proved a major barrier. While many former Communist countries have now introduced laws establishing markets in intellectual property rights, the high rate of piracy reflects a lack of legal tradition and respect for private intellectual property rights.
Three principal distinctions between First and Third World attitudes towards intellectual property can be drawn. These concern the role of the creator, the community and profit.
First, in traditional societies of the Third World, awe and mystery surround the created object into which the creator projects spirit and soul. In Japan (now a First World country but retaining many ancient ways), a sword, being a product of mental work, is regarded not merely as a material object, but as imbued with the author's living spirit. This may still be seen in the craftsmanship of Japanese industrial products. Furthermore, objects of worship are not limited to visible and concrete things. Even a word can have a spirit.20 In the Occident, only vague hints of ancient animism remain in concepts such as the "moral rights" of creators.
Second, in the First World, only the individual (or a legal entity called a corporation) is considered "creator". In many Third World countries, a different tradition exists. To the Balinese, for example, artistic knowledge is not restricted to a special intellectual class. In fact, the Balinese have no words for art or artist. Making a beautiful offering, carving a temple gate, or playing a musical instrument, all are tasks of equal aesthetic importance produced anonymously, and done entirely in the service of society and religion with no thought of personal gain.21
This distinction is leading to growing controversy between the First and Third World in GATT negotiations. Thus in the preamble to the draft GATT treaty concerning trade-related aspects of intellectual property (TRIPS), community intellectual property rights are excluded. TRIPS explicitly states that intellectual property rights are recognized only as private rights. As noted by Vandana Shiva in her inaugural Hooper Lecture: "Monocultures of the Mind: Understanding the Threats to Biological and Cultural Diversity",22 this excludes all kinds of knowledge, ideas and innovations produced in the intellectual commons, e.g. in villages among farmers, in forests among tribal peoples, and even in universities among intellectuals.
Third, TRIPS also recognizes intellectual property rights only when they generate profits, i.e. when they are capable of industrial application, not when they meet social need. Similarly under TRIPS only rights that are "trade-related" are recognized.
As noted by Vandana Shiva, for many Indian farmers "IPR" stands for "intellectual piracy rights". A case in point is the neem tree, which has been cultivated and nurtured by Indian peasant farmers for centuries as a biopesticide and medicine. American and Japanese corporations have "patented" the medicinal and pesticide properties of the tree with no royalties accruing to Indian farmers.
The "numinosity"24 of artifacts among preliterate peoples reflects investment of what Carl Sagan calls "extra-somatic" knowledge, i.e. knowledge carried outside of the body.25 Such knowledge can, by analogy, be considered the social genetic which directs the evolution of human society. It is the knowledge passed from one generation to another. In the post-modern world, it is embodied in books, recordings, computer software, and other contemporary ways to transmit "know-how" to future generations.
In such societies, innovation depends upon the insight of the creator and his or her ability to insure the integrity of mnemonic instruction, whether in the form of incantation or epic poem. Cause and effect are not distinguishable. It is through the unchanging enactment of ritual that desired results are achieved. Science and art are one. How to make something and the thing made are mystically unified. Process and product are identical. To name a thing is to magically control it. Essentially, Fourth World peoples are animistic in that they see all parts of the natural world as infused with spirit.
Another aspect of Fourth World knowledge is traditional environmental knowledge, or TEK. TEK can be defined as a body of knowledge built up by a group of people through generations of living in close contact with nature.26 TEK is rooted in a social context that sees the world in terms of social and spiritual relations between all life forms. Relations are based on reciprocity and obligations toward both community members and other life forms and communal resource management institutions are based on shared knowledge and meaning. For many aboriginal peoples, TEK is at the heart of their cultural identity and remains a viable aspect of their way of life. It is holistic -- as opposed to reductive, which is characteristic of Western science.
Among Fourth World peoples the oral tradition remains the dominant form of inter-generational and intra-generational transfer of knowledge. But can such knowledge be converted into property which will be recognized and respected by other cultures? Both First and Second World systems of intellectual property rights are based on the concept of fixation in material form. That which is ephemeral, like the spoken word, is not protected as property.
The question of "appropriation" has arisen in the artistic community regarding the telling of tales and creation of works of art based on Fourth World cultures. On the one hand, some in the First World community recognize the ownership of Fourth World peoples to their own culture. On the other hand, there are those who believe that if artists restrict themselves to their own culture all of humanity will be deprived of cultural richness.27 An extreme example of appropriation is the alleged case of the thunderbird motif used by the Kwakiutl people of west coast Canada. Kwakiutl women knitted woolen sweaters using this design. A pair of Japanese businessmen saw the sweaters on a tour and promptly mass produced them for sale in Asia. Apparently over $100 million in sales were made. Not a penny was returned to the Kwakiutl people. And because such images are in the "public domain", according to First World intellectual property rights, the Kwakiutl had no standing before a court to seek damages and compensation for the appropriation of their cultural property for the profit of others.
Native or "collective" copyright has yet to be embodied in international statute or convention. It is based on an collectivist concept of creation similar to that of traditional Third World cultures. To tribal peoples, a song, story or icon does not belong to an individual but to the collective. Rights are often exercised by only one individual in each generation, generally through matrilineal descent.
Some small steps have, however, been taken to recognize Fourth World intellectual property rights. But the first and most urgent problem is the rapid disappearance of traditional Fourth World knowledge with the passing of elders. Orally based knowledge systems lost in this way cannot be retrieved.
The United States has recognized native American heritage rights (in contrast to its non-recognition of collective intellectual property rights of Third and other Fourth World peoples who have developed plant and animal species over the centuries through communal action). The U.S. Congress has passed Public Law 101-601: The Native American Graves Protection and Repatriation Act of 1990,28 converting native art and artifacts into "inalienable communal property". According to Clair Farrer,29 this should logically be extended to include the written and spoken word embodied in stories and sacred tales. At the international level, however, UNESCO continues to dither over collective copyright.
If it is important to save the rain forests, then it must be equally important to save the indigenous cultures living in them. Put another way, maintaining biological diversity should go hand in hand with maintaining cultural diversity. To do so, however, requires recognition of a diversity of intellectual property regimes that are based not just on the individual creator, commercial exploitation or the needs of the state.
Harry Hillman Chartrand, "Intellectual Property in the Global Village," Government Information in Canada/Information gouvernementale au Canada, Vol. 1, no. 4.1.
Harry Hillman Chartrand Cultural Economist 706 Landsdowne Avenue Saskatoon, Saskatchewan S7N 1E5 Telephone and FAX: (306) 242 1779For information on other work by the author, see Counterstrike
 Samuel Huntington, "The Clash of Civilizations," Foreign Affairs, Summer 1993, pp. 22-49.
 Robert Kaplan, "The Coming Anarchy," Atlantic Monthly, February 1994, pp. 44-76.
 William Gibson, Neuromancer (New York: Ace, 1984), Count Zero (New York: Arbor House, 1986), Mona Lisa Overdrive (New York: Bantam, 1988), Virtual Light (New York: Bantam, 1993).
 Michael Wilson, "Address to the Canadian Bureau for International Education," 14 July 1992.
 John Stackhouse, "Asia's Native People Keep Getting Shoved Aside," Globe & Mail, 14 May 1994, p. A10.
 National Telecommunications and Information Administration, Comprehensive Study on the Globalization of Mass Media Firms: Notice of Inquiry and Request for Comments (Washington, 1990).
 "Meet the New Media Monsters," The Economist, 11 March 1989, pp. 65-66.
 Mircea Eliade, Rites and Symbols of Initiation: The Mysteries of Birth and Rebirth (New York: Harper Colophon, 1958).
 "Software Piracy Up 14%," Globe & Mail, 27 February 1994, p. B9.
 "Bogus Rock Merchandise Yields $1.2 Million Windfall for Ethiopia," Globe & Mail, 3 May 1990, p. A12.
 "U.S., China Avert Trade War," Globe & Mail, 27 February 1994, p. B9.
 Bruce McDonald, Copyright in Context: The Challenge of Change (Ottawa: Economic Council of Canada, 1971), p. 14.
 Bruce McDonald, Copyright in Context: The Challenge of Change (Ottawa: Economic Council of Canada, 1971), pp. 15-16.
 Z. Chafee Jr., "Reflections on the Law of Copyright: 1 and 2," Columbia Law Review (vol. 45) July and September 1945, p. 722.
 Bruce McDonald, Copyright in Context: The Challenge of Change (Ottawa: Economic Council of Canada, 1971), p. 18.
 David Vaver, "Copyright in Foreign Works: Canada's International Obligations," Canadian Bar Review, (vol. 66) March 1987, pp. 82-83.
 Government of Canada, Shaping Canada's Future Together: Proposals (Ottawa: 1991).
 T. Koisumi, "Traditional Japanese Religion and the Notion of Economic Man," Journal of Cultural Economics, (vol. 1, no. 2) December 1977, pp. 35-46.
 Desmond Morris, "Art and Religion" in "The Human Race", Thames Television, UK, 1982.
 Vandana Shiva, "Monocultures of the Mind: Understanding the Treats to Biological and Cultural Diversity," inaugural Hooper Lecture, Centre of International Programs, University of Guelph, 21 September 1993.
 Julian Jaynes, The Origins of Consciousness in the Breakdown of the Bicameral Mind (Boston: Houghton Mifflin, 1976).
 Carl Jung, Man and His Symbols (London: Aldus, 1964).
 Carl Sagan, The Dragons of Eden (New York: Random House, 1977).
 Martha Johnson, Lore: Capturing Traditional Environmental Knowledge (Ottawa: Dene Cultural Institute and International Development Research Centre, 1992).
 Carol Giangrande, "Allowing the Mind to Wander," Globe & Mail, 19 September 1990, p. A24.
 Native American Graves Protection and Repatriation Act, Pub. L. No. 101-601, 25 U.S.C.A. s, 3001.
 Clair Farrer, "Who Owns the Words? An Anthropological Perspective of Public Law 101-601," Journal of Arts Management, Law and Society, Winter 1994, pp. 317-326.