Looking Beyond Intellectual Property in Resolving Protection of Intangible Cultural Heritage of Indigenous Peoples

While modern indigenous artists, and especially collectives, have been able to resort to traditional property rights concerning moveable cultural property, many native peoples have found their claims to ownership of their intangible cultural property, such as motifs, songs, prayers, ceremonies, music, legends and folklore, frustrated by the limits of established intellectual property and other legal regimes. These groups face commoditization and commercialization problems, but are stuck in a catch-22 by rejecting intellectual property regimes but facing the consequence of lost control over their own cultural property. This article evaluates the various claims and desires of indigenous peoples, and others whose needs arguably justify specific legal recognition and protection, against the background of the often conflicting constitutional and social policies that establish the structural framework of modern democratic societies, paying particular attention to the policies underlying intellectual property law and the basic human rights of free speech and free expression. The authors consider the social policy tradeoffs that are involved in recognizing, or not recognizing, intellectual property rights in indigenous cultural property. They conclude that the legitimate concerns of indigenous people can be accommodated without recognizing new intellectual property rights, either through modest reinterpretation of existing legal regimes concerning contract, privacy, and unfair competition law, or through carefully tailored but general statutory amendment or incrementally developed common law principles aimed at leveling what might otherwise be seen as an unfair playing field. Intellectual property rights seem to be an unsatisfactory foundation on which to build a viable cultural heritage legal edifice. Rather than try to fit the justifiable claims of indigenous peoples into legal property-rights categories that were not designed to accommodate their essential characteristics, this article focuses on those aspects of indigenous peoples\u27 claims that can be addressed outside the intellectual property rights regimes of patent and copyright. Traditional concepts of contract, privacy, trade secret, and trademark can go a long way in the desired direction. This approach, however, would not recognize all the claims that have been asserted on behalf of indigenous peoples

Brief of Amici Curiae 56 Professors of Law and Economics in Support of Petition of Writ of Certiorari

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant forum shopping, particularly by patent trolls. 44% of 2015 patent lawsuits were filed in a single district: the Eastern District of Texas, a forum with plaintiff-friendly rules and practices, and where few of the defendants are incorporated or have established places of business. And an estimated 86% of 2015 patent cases were filed somewhere other than the jurisdictions specified in the statute. Colleen V. Chien & Michael Risch, Recalibrating Patent Venue, Santa Clara Univ. Legal Studies Research Paper No. 10-1 (Sept. 1, 2016), Table 3. This Court should grant certiorari to review the meaning of 28 U.S.C. § 1400(b) because the Federal Circuit’s dubious interpretation of the statute plays an outsized and detrimental role, both legally and economically, in the patent system

Brief of Amici Curiae 56 Professors of Law and Economics in Support of Petition of Writ of Certiorari

28 U.S.C. § 1400(b) provides that a defendant in a patent case may be sued where the defendant is incorporated or has a regular and established place of business and has infringed the patent. This Court made clear in Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 223 (1957), that those were the only permissible venues for a patent case. But the Federal Circuit has rejected Fourco and the plain meaning of § 1400(b), instead permitting a patent plaintiff to file suit against a defendant anywhere there is personal jurisdiction over that defendant. The result has been rampant forum shopping, particularly by patent trolls. 44% of 2015 patent lawsuits were filed in a single district: the Eastern District of Texas, a forum with plaintiff-friendly rules and practices, and where few of the defendants are incorporated or have established places of business. And an estimated 86% of 2015 patent cases were filed somewhere other than the jurisdictions specified in the statute. Colleen V. Chien & Michael Risch, Recalibrating Patent Venue, Santa Clara Univ. Legal Studies Research Paper No. 10-1 (Sept. 1, 2016), Table 3. This Court should grant certiorari to review the meaning of 28 U.S.C. § 1400(b) because the Federal Circuit’s dubious interpretation of the statute plays an outsized and detrimental role, both legally and economically, in the patent system

The Case Against Property Rights in Old Intangible Indigenous Cultural Property

This article critically reviews some of the recent literature calling for intellectual property rights in indigenous cultural knowledge. In an earlier piece, we argued generally against the notion of defining a new class of “indigenous cultural property” analogous to copyright and patent rights. Rather, we must analyze demands for more protection for old cultural property by building from the ground up, using judicial interpretation or carefully tailored statutory amendments to determine whether the work in question is one that should be protected by a new right and, if so, deciding both the scope and term of protection. Intellectual property involves a tradeoff between rewarding the legitimate demands for protection and society’s overall interest in allowing information generally to be used freely. Hence the term of protection for both patent and copyright has always been limited. Here we review some of the commentary that has appeared in the interim seeking to establish rights in old cultural property. We conclude that many of the assumptions underlying calls for such protection cannot withstand critical analysis and that a one-size-fits-all definition of indigenous cultural property is both unwise to try and impossible to achieve

Looking Beyond Intellectual Property in Resolving Protection of Intangible Cultural Heritage of Indigenous Peoples

While modern indigenous artists, and especially collectives, have been able to resort to traditional property rights concerning moveable cultural property, many native peoples have found their claims to ownership of their intangible cultural property, such as motifs, songs, prayers, ceremonies, music, legends and folklore, frustrated by the limits of established intellectual property and other legal regimes. These groups face commoditization and commercialization problems, but are stuck in a catch-22 by rejecting intellectual property regimes but facing the consequence of lost control over their own cultural property. This article evaluates the various claims and desires of indigenous peoples, and others whose needs arguably justify specific legal recognition and protection, against the background of the often conflicting constitutional and social policies that establish the structural framework of modern democratic societies, paying particular attention to the policies underlying intellectual property law and the basic human rights of free speech and free expression. The authors consider the social policy tradeoffs that are involved in recognizing, or not recognizing, intellectual property rights in indigenous cultural property. They conclude that the legitimate concerns of indigenous people can be accommodated without recognizing new intellectual property rights, either through modest reinterpretation of existing legal regimes concerning contract, privacy, and unfair competition law, or through carefully tailored but general statutory amendment or incrementally developed common law principles aimed at leveling what might otherwise be seen as an unfair playing field. Intellectual property rights seem to be an unsatisfactory foundation on which to build a viable cultural heritage legal edifice. Rather than try to fit the justifiable claims of indigenous peoples into legal property-rights categories that were not designed to accommodate their essential characteristics, this article focuses on those aspects of indigenous peoples\u27 claims that can be addressed outside the intellectual property rights regimes of patent and copyright. Traditional concepts of contract, privacy, trade secret, and trademark can go a long way in the desired direction. This approach, however, would not recognize all the claims that have been asserted on behalf of indigenous peoples

Looking Beyond Intellectual Property in Resolving Protection of Intangible Cultural Heritage of Indigenous Peoples

While modern indigenous artists, and especially collectives, have been able to resort to traditional property rights concerning moveable cultural property, many native peoples have found their claims to ownership of their intangible cultural property, such as motifs, songs, prayers, ceremonies, music, legends and folklore, frustrated by the limits of established intellectual property and other legal regimes. These groups face commoditization and commercialization problems, but are stuck in a catch-22 by rejecting intellectual property regimes but facing the consequence of lost control over their own cultural property. This article evaluates the various claims and desires of indigenous peoples, and others whose needs arguably justify specific legal recognition and protection, against the background of the often conflicting constitutional and social policies that establish the structural framework of modern democratic societies, paying particular attention to the policies underlying intellectual property law and the basic human rights of free speech and free expression. The authors consider the social policy tradeoffs that are involved in recognizing, or not recognizing, intellectual property rights in indigenous cultural property. They conclude that the legitimate concerns of indigenous people can be accommodated without recognizing new intellectual property rights, either through modest reinterpretation of existing legal regimes concerning contract, privacy, and unfair competition law, or through carefully tailored but general statutory amendment or incrementally developed common law principles aimed at leveling what might otherwise be seen as an unfair playing field. Intellectual property rights seem to be an unsatisfactory foundation on which to build a viable cultural heritage legal edifice. Rather than try to fit the justifiable claims of indigenous peoples into legal property-rights categories that were not designed to accommodate their essential characteristics, this article focuses on those aspects of indigenous peoples\u27 claims that can be addressed outside the intellectual property rights regimes of patent and copyright. Traditional concepts of contract, privacy, trade secret, and trademark can go a long way in the desired direction. This approach, however, would not recognize all the claims that have been asserted on behalf of indigenous peoples