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Intellectual & Cultural Property in the Global Village


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Dr. Harry Hillman Chartrand, PhD 


Cultural Economist & Publisher

Compiler Press

Chief Economist

Cultural Econometrics

215 Lake Crescent

Saskatoon, Saskatchewan

Canada, S7H 3A1






Launched: 1998




 The end of the ‘Market/Marx Wars’ leaves us with but one economic ideology, one secular faith - neoclassical market economics.  Excepting North Korea, Cuba and arguably Venezuela and Zimbabwe, no Nation-State publicly subscribes to economic Marxism.   Even as the People’s Republic of China struggles to reconcile private property with the political clarity of Leninism sans Marx, it, and all other Nation-States are current or expectant members of a World Trade Organization (WTO) rooted in the ideology of the marketplace and private property.  This excludes, of course, the current ‘secular/religious’ wars waging around the world.  From our Cold War past, however, we have, nonetheless, inherited a global village with four neighborhoods – the First, Second, Third and Fourth Worlds.

It should not, therefore, be surprising that just as the former Second World of centrally planned collectivist 'one-size-fits-all' economies melted into a single global marketplace, the First World of private personal property shifted from a manufacturing-based to a knowledge-based economy.  And what property is more personal than intellectual property rights (henceforth ‘IPRs’)?  Or, as eloquently expressed by Zechariah Chafee: 

… intellectual property is, after all, the only absolute possession in the world...  The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property.

Not only are IPRs the most personal and private form of property, they are also the legal foundation for the industrial organization of the knowledge-based economy - copyright, designs, patents, trademarks, etc.  They constitute what Harold Innis calls the staple of such an economy.  Innis is arguably the founder of the only indigenous school of Canadian economics based on his ‘staple theory’.  He studied Canada’s development - from cod to fur to timber to wheat.  Each staple, according to Innis, engenders a distinctive patterning to the economy.  Near the end of his career he moved on to study ‘communications’ and its matrix concluding, in effect, that it is the ultimate staple commodity.

Unlike other goods and services that are defined by technical standards, IPRs are defined by law.   And unlike public support for production of other goods and services subject to ‘harmonization’ under the rules of the WTO, IPRs are subject to the milder constraint of ‘national treatment’.  This means a country must extend to foreign creators the same rights as granted to nationals.  These rights, however, need not and are not generally the same between countries.  For example, the term of copyright in Canada is life of the artist plus fifty years.  In the U.S., it is life of the artist plus seventy years.  This means that the work of an American artist will enter the Canadian public domain twenty years earlier than in the U.S. 

Furthermore, the average cost curve of a knowledge-based economy is not the classical ‘U’ shape of manufacturing but rather it is ‘L’ shaped. Suppose that the first unit of Windows VISTA cost $500 million to develop but the second and all subsequent units cost a $1.99. This highlights the economic significance of copyright and IPRs. Without State-sponsored and enforced IPRs the enormous initial investment required for many innovations would be unprofitable. Arguably, however, the same holds for the individual artist/creator. At the extreme, there is Van Gogh, the epitome of the mad starving artist. He cut off his ear and sent it to his girl friend; spent much of his life in an insane asylum; and, in return, he gave the world sunflowers and starry nights for only $1.99 at the local dollar store.

IPRs, however, come in two dominant and competing global flavours: Anglosphere Common Law and European Civil Code.  Both limit IPRs in Time after which all knowledge enters the ‘public domain’ where it is available free for all.  Both are also based on the ‘Person’ – natural or legal.   Under Anglosphere Common Law, however, natural and legal persons increasingly enjoy the same rights.  Under European Civil Code there are certain rights that adhere only to a natural person.  Such moral rights are “inalienable, unattachable, impresciptible and unrenounceable”.   This difference reflects the different paths taken by the two great republican revolutions of the 18th century.

While the American Revolution overturned the ancient regime of subordination by birth it nonetheless adopted English Common Law and precedent governing business including IPRs.   In essence IPRs in the Anglosphere are based on precedent.  In the case of copyright, this precedent is one of censorship, pre-publication licensing and grants of industrial privilege.  It is intended to propel works into the marketplace by granting rights to secondary creators like publishers, recording companies and motion picture studios.  It is, in effect, trade regulation of a State-sponsored monopoly. Its root is not the natural rights of the creator cum the European Civil Code which primarily intends to promote culture.

The French Revolution, on the other hand, overturned not just the ancient regime of subordination by birth but also the old French common law. It was replaced by the Napoleonic Code or what became the Civil Code. It is a legal code rooted in principle rather than precedent especially the principle of ‘natural rights’ as seen at the height of the 18th century Republican Revolution, e.g., moral rights of creators.   In effect, there is a clash between the two dominant global IPR regimes, a clash between principle (Civil Code) and precedent (Common Law).  As human artifacts, of course, both have strengths and weaknesses and both are less than ideal in practice.

Many global IPR traditions, however, are not based on the person - natural or legal.  The Fourth World of ‘aboriginal’, “indigenous’ or ‘native’ peoples has a concept of collective or communal intellectual property existing in perpetuity, i.e. not limited to the life of an individual creator plus some arbitrary number of years after death. To tribal peoples, a song, story or icon does not belong to an individual but to the collective.  Rights are, however, often exercised by only one individual in each generation, sometimes through matrilineal descent.  Unlike the Third World, aboriginal nations do not constitute ‘Nation-States’.  They are therefore seldom represented on the international stage.  At present, ‘folkloric’ and ‘aboriginal heritage rights’ have no standing in most courts of the world. 

In the Third World (or ‘the South’) there are historically varied traditions governing IPRs.  Early Islamic jurists, for example, recognized a creator’s rights and offered protection against piracy. However, traditional Islamic law treats infringement as a breach of ethics, not a criminal act of theft punishable by amputation of the right hand.  Rather, punishment took the form of defamation of the infringer and casting shame on his tribe.  Only in recent years have formal copyright statutes been adopted in many Islamic countries, e.g., Saudi Arabia in 1989. 

In much of the Third World, however, another tradition exists similar to that of the aboriginal peoples of the Fourth World.  This recognizes ‘collective’, ‘communal’ or ‘folkloric’ copyright.  This contrasts with the Western person-based concept.  Folkloric IPRs recognizes rights to all kinds of knowledge, ideas and innovations produced in ‘the intellectual commons’, e.g., in villages among farmers, in forests among tribal peoples, etc..  Part of this constitutes ‘TEK’, i.e., traditional ecological knowledge, infringed by Western-based corporations in a number of countries including India. 

It is the mission of Compiler Press to compile into comparative format such cultural IPR traditions as well as national intellectual property rights statutes and multilateral agreements, conventions, covenants and treaties that define and constrain them.  These are the foundation of the global knowledge-based economy; they constitute the economic constitution for knowledge workers in this brave new world.