TO EARN FROM THEIR OWN INTELLECTUAL PROPERTY
J. Michael Finger
2. SUCCESSES
There are many examples of poor people capturing the commercial value of their intellectual property. The examples tend to illustrate a simple principle;
the normal commercial and legal instruments that work well in richer so- cieties can work for poorer people.
2.1. Property Rights for Indigenous People
Nelly Arvalo-Jime´nez (2004) is a Venezuelan woman, with a Ph.D. in an- thropology from the University of California. For most of her professional life she has worked with the Yekuana people who live in the tropical forests of the Amazon and the Orinoco Basins.
It is hard to find a way to describe Yekuana society in a way that does not sound supercilious. ‘‘Natives’’ they would have been called in the days of Tarzan movies, ‘‘traditional groups’’ as we have tried to become more culturally sensitive.
Though the Yekuana people live in an area we would describe as remote, they have experienced major incursions of modern society, some associated with attempts to exploit natural resources through large-scale mining and rubber plantations. As the Yekuana people attempted to avoid being im- pressed as plantation or mining labor, their settlements became widely dis- persed. As they became more dispersed, takeover of their land was an increasing threat.
The Venezuelan constitution recognizes traditional property rights, but those who would claim them must put together the necessary information and apply for the property ownership documents that we in the ‘‘modern world’’ take for granted. In 1993, with technical support recruited by the Asociacio´n OTRO FUTURO, the Yekuana started a program to identify and mark the land that was by tradition theirs, so that they could apply for formal deeds of ownership.
The program was informally named Esperando a Kuyujani. Kuyujani is the Yekuana’s cultural hero, who at the beginning of time identified – by walking across them – the lands he left in trust to the Yekuana people. Once the land was so marked and Kuyujani’s teachings were assimilated, he went away, leaving with his people a promise to return.
From their oral history, the Yekuana were able to reconstruct all of Kuyujani’s original treks. From this knowledge they marked their borders with stakes and stones. By 2001 they had completed a map that not only identified their borders but also included cultural data, topographic features, historical and sacred monuments, and natural resources. A parallel effort put together an archive of Yekuana visual images, crafts, medical know- ledge, and so forth. These archives are a necessary base for claiming copy- rights, trademarks, and patents on the Yekuana’s knowledge. The Yekuana have organized themselves into a corporate unit, a legal‘‘person’’ in whom ownership can be vested. This property identified and recorded, the Ye- kuana have entered into a contract with a U.S. company to explore and develop the commercial value of some of their knowledge, particularly their medical knowledge.
The initial motivation behind the project was as much social as economic – to preserve Yekuana folkways and culture. The written and photographic record of Yekuana cultural heritage has become an important pedagogic tool in the Aramare school, which the Yekuana established. The school emphasizes the teaching of religion, ceremonies, dances and sacred music, playing of musical instruments, and oral history. The teachers there are wise old specialists in oral history, religion, and the ancient ways. Their role in the school is helping to restore the status that elders and wise men once had in Yekuana society.
It would be a mistake to presume that the traditional schools are back- ward-looking. They also offer workshops in modern matters such as tourism and the legal mechanics of registering and merchandising property rights.
The main lesson from this experience: creating a record of the Yekuana’s property that will serve them in their dealings with the modern world was done in a way that strengthened rather than weakened indigenous culture.
Culture and commerce complement rather than conflict. A complementary lesson is the need for an active program to maintain and build on indigenous culture. The momentum of the interface between the traditional world and the modern is toward the latter, but Yekuana experience demonstrates that, creatively managed, the dynamic of the indigenous culture can be maintained.
2.2. Indian Crafts
Maureen Liebl grew up in the United States and now lives in India. Her passion is Indian art and handicrafts: weaving, jewelry, embroidery, furni- ture, dolls, and such.
Handicrafts in India provide a modest livelihood to large numbers of poor people, particularly to the rural poor. Currently, about 10 million people earn some U.S.$4 billion a year from such work – until recently more than India earned from computer software.
Handicrafts have value beyond their capacity to generate income. Num- bers of connoisseurs avidly collect examples of specific craft genre, numer- ous scholarly treatises and expensive coffee-table books have been written on various craft forms. Ms. Liebl’s expertise is to find ways to maintain such art and to improve the economic situation of its artists. Her particular expertise is in adapting the skills and products of Indian artisans to new market conditions.
In applying this expertise, Ms. Liebl is a realist. Commercial realities do not paint an optimistic picture for all artisans. Take, for example, weavers of everyday garments. In the past, wrapped, unstitched cloth was the basic mode of dress throughout the country (the woman’s sari and the man’s dhoti). The local weaver was thus an important member of the community and his economic well-being was assured. Many women today prefer the brilliant chemical colors, novel synthetic texture, and low price of machine- madesaris, and many are shifting to tailored clothing. Throughout India, women still prefer sarisfor formal and ritual occasions, and there will al- ways be a market for the exclusive (and often expensive) high-end woven saris. But the livelihood of the multitude of local weavers has disappeared.
The consumer has spoken. Except in a museum setting, Ms. Liebl con- cludes, no traditional craft skill can survive unless it has a viable market.
Upscale markets offer more optimistic examples. One is the designer Ritu Kumar. In the 1970s, Ms. Kumar revived a traditional form of embroidery done with silver and gold wire to create fine evening and bridal outfits. In time she expanded into other traditional crafts, such as other forms of embroidery, mirror work, and hand-blocked prints. At first she incorpo- rated these into traditional Indian outfits, but has since moved into fusion and Western clothing, as well as into accessories and home decoratives.
Today, Ritu Kumar has boutiques throughout India as well as in London, and is an international presence.
Ritu Kumar has been the inspiration and model for a new generation of designers who see traditional craft skills as the foundation for a contem- porary Indian design aesthetic. One group is working with traditional palm- leaf manuscript painters from the eastern state of Orissa, teaching them carpentry and opening their eyes to the ways in which their paintings can be incorporated into fine furniture. In the southern Indian state of Kerala, sensitive development of ‘‘backwaters tourism’’ has saved thekettuvallom
and its makers. Thekettuvallomis a type of boat that was originally used for cargo transport and is now used as private floating hotels. They have be- come fashionable with high-end international tourists.
People in the crafts business are pessimistic about obtaining design and process protection through enforcement of patent and copyright laws by the Indian government. Ms. Liebl and economist Tirthankar Roy (2004), in- terviewed many dealers, manufacturers, and exporters on the matter, and not one expressed optimism. The most positive answer they received, she told me, was a polite laugh. The entire system of property rights enforce- ment in India has problems, and these problems are unlikely to be overcome for the sole purpose of protecting crafts producers.
The study illustrates that many people engaged in commercial activities to help developing country artisans are motivated by their love for the art, their concern for the artists, as well as by the opportunity to profit from their work. The effective ones are market accepting; they realize that except in a museum setting, no traditional craft skill can be sustained unless it has a viable market.
A second lesson is that the lack of enforcement of Intellectual Property Rights (IPRs) in the domestic economy orients activity toward foreign markets where such protection is available, or toward the high end of the home market. Here the artist is protected from unauthorized copying by the uniqueness of his or her skill and the appreciation of his or her customers for the objects that skill can render.
2.3. African Music
African music has significant business potential. It currently makes up about half of the fast-growing ‘‘world music’’ segment of recorded music, and music industry experts suggest that African music today may be at the jumping-off-point where country music and rock and roll were in the United States in the 1950s.
Frank J. Penna’s distinguished work has ranged from the international marketing of railroad equipment to community organizing in the north- eastern United States. He has recently led an effort to help African musicians to boost their earnings. His team (of which I had the pleasure to be a part) began with a series of meetings in Dakar, Senegal, with local musicians.
‘‘What are your problems,’’ we asked, ‘‘and what do you see as solutions with which we might help?’’
The musicians came forward with a long list of complaints. The following are only a few of those listed in a longer report byPenna, Thormann, and Finger (2004).
Most Senegalese musicians make their living from the local market. Of some 30,000 musicians, perhaps a dozen derive income from foreign sales.
Piracy of local music is rampant. Cassettes sold locally are quickly coun- terfeited, and radio stations play the music without paying royalties. Most musicians are unaware that there are laws to combat such piracy, they do not know how to use the laws, and they do not have the resources to engage lawyers to represent them.
Pirates have more resources at their disposal and better connections with influential politicians than do the people responsible for enforcing intel- lectual property laws.
Musicians who enjoy success in the international market produce and record their music in foreign studios; their success provides neither pres- sure for copyright enforcement in Senegal nor jobs for local sound tech- nicians and engineers.
‘‘Big fish eat little fish’’ is how Africans describe the economic structure of their music industry.
Finding a place to start in such a situation is difficult. When we inves- tigated the problem of pirated cassettes being sold on the street, we learned that the pirates were not little guys who bought a cassette, then went to make copies on a little machine. The owner of the recording studio, where the band went to record its song and have 250 cassettes made, usually kept a master tape. If the song turned out to be popular, he made copies for himself, and had his salespeople go out on the street to hawk them.
When we inquired of the radio stations why they did not pay royalties they complained that the government did not transmit to them the money from the license fees that each owner of a radio in Senegal was obligated to pay. The government agency responsible told us that they did not have the resources to collect the license fees.
We were lucky to find in the local Senegal Musicians’ Association a President who was both dynamic and honest, Mr. Aziz Dieng. The Asso- ciation already had on its drawing board a sensible plan to attack these problems. We signed on to help.
The government, aware of a 30,000-member organization now active on the local scene, became supportive; after all, which politician could be opposed to music? Spurred by the government’s interest and by the activities of the Musicians’ Association, the copyright enforcement organization has
become more dynamic. It has taken legal action to force radio stations to pay royalties; it has also initiated a system to combat local piracy by pro- viding difficult-to-counterfeit stickers to attach to cassettes and disks on which royalties have been paid. The sticker system will help to identify counterfeit products; its success of course depends on the rigor of the police and the courts to enforce the law. No small amount of credit here should go to Ms. Sibyl Schlatter, an intellectual property lawyer. She helped the Musicians Association to put the fear of the law to the agency.
From this start, the government of Senegal has inserted into its tourism development plan the provision of additional business infrastructure (stu- dios, performance halls, etc.). The Ford Foundation has picked up on the need to educate local musicians as to their rights under Senegalese copyright law, to provide legal and business education for local musicians, to provide them with templates for performance contracts, etc.
The most forward-looking element in the overall Africa music plan is for an Internet-based distribution system for African music. An African mu- sician plays a song in an African studio. Computerized equipment records the song, creates the records for the copyright, and mounts the song into an encrypted dot.com facility that listeners around the world can address. As a listener downloads or plays the song, his or her bank or credit card account is automatically debited, and the musicians’ account automatically credited.
Such a system, experts insist, is within the bounds of present technology.
An important lesson here is that empowerment of the poor musicians – getting the government to recognize them as a political force – is an im- portant part of the remedy. Because the local people saw how their interests could be advanced, a dynamic program of reform and development has been initiated for a minimal amount of money.
An important dimension of the music project is the positive impact on African morale that further success in music will bring – building a sense of
‘‘can do’’ that Africans might carry over into other endeavors.
Another lesson is that the World Trade Organization’s agreement on the trade-related aspects of intellectual property (TRIPS) has missed the devel- opment boat entirely (see Finger, 2002, 2004; Finger & Schuler, 2004 for more detailed discussion).
2.4. Local Designs, Local Identity
Ron Layton (2004)began his career in the New Zealand foreign service. He later ran a successful film production company in California. From that
business experience he mastered the commercial mechanics of identifying, defending, and marketing intellectual property. Through his current ven- ture, Light Years IP, he helps developing country producers to capitalize on the value of their designs and their geographic and ethnic identities.
When I first met Ron he was helping a group of Congolese artisans. Ten Thousand Villages, one of the leading fair trade importers of handicrafts in the U.S., was marketing one of the Congolese artisans’ products, a toy automobile inspired by the Volkswagen ‘‘Bug’’ but made entirely from strands of wire. These artisans are from a group of people with a long tradition of making adornments from wire, e.g., tall, spiraling women’s necklaces. The product attracted the attention of Volkswagen who raised issues of design ownership. Volkswagen has certain rights to the design of a model ‘‘Bug’’ as it is derived from their design of the actual car. Ron knew however that just as Volkswagen owned the design, the interpretation of the design in a particular medium was likewise intellectual property, and could be identified and commercialized. Light Years IP assisted Ten Thousand Villages secure an extended license from Volkswagen to resume marketing the product. Copies of the interpretation in wire cannot be sold in the U.S.
without license from the owner of the interpretation.
As a cup of coffee has shifted from an indistinguishable commodity into a boutique item, the identity of the coffee has taken on a value of its own.
Light Years IP is currently working with Ethiopian coffee producers to trademark and otherwise identify their coffee by the province in which it is grown.2The project involves international registrations of names and also training in intellectual property management for Ethiopian producers.
The idea is simple – if ‘‘Harar’’ or ‘‘Lekempti’’ (regions of Ethiopia) is an identity that consumers value, then the producers in those regions should be able to capture that value. The execution, however, requires skill and patience. The business model Light Years IP is helping suppliers to adopt focuses on earning royalties for products branded as coming from a par- ticular region or tribe. Controlling the rights to supply their product to distributors is a key element in improving poor producers’ livelihoods.
2.5. Traditional Knowledge, Modern Knowledge, and Poor People’s Knowledge
The term ‘‘traditional knowledge’’ includes traditional and tradition-based cultural expressions in forms such as stories, music, dance, artworks, crafts, etc., including symbols, marks, and other recurring expressions of traditional
concepts. It also covers traditional agricultural, medical, and technical knowledge.‘‘Indigenous knowledge’’ and ‘‘traditional knowledge’’ are more or less synonyms (Visser, 2004).
One characteristic is that such knowledge is handed down from gener- ation to generation, usually as part of an oral tradition. Another is that its use is interwoven in a net of customary obligations and rights of the individuals and the community. Within ‘‘indigenous communities,’’ the practical and the spiritual/ceremonial dimensions of life overlap perhaps more than they do in ‘‘modern communities.’’ In addition, ‘‘traditional knowledge’’ suggests a sense of common or community ownership.
At the extreme, one might imagine a simple analytical model in which people in modern society and in a traditional community each view the origin and ownership of knowledge in a manner parallel with how they view the origin and ownership of tangible property. Consider a stereotypical community of hunter-gatherers. Persons in such a community are aware that many unseen plants and animals are alive in the wild. Provisioning oneself is a matter of acquiring these rather than of creating them. Know- ledge they conceptualize in a similar way. What persons in ‘‘modern society’’
perceive as innovation or creativity they perceive as access to and drawing from a hidden stock of knowledge – to use perhaps an overly sophisticated phrase, drawing from a divinely inspired subconscious.
Modern intellectual property law recognizes ‘‘common knowledge’’ as the property of all – the ‘‘public domain.’’ No one can obtain a patent or copyright for it. However, individuals can own new knowledge. The con- ception here is that knowledge, like cars or carrots, isproducedthrough the efforts of people rather than taken from a stock that nature provides. The basic elements needed to claim a copyright or a patent are a creative step, an identified creator and a basis to demonstrate that the claimantisthe creator.
In short, to gain ownership of knowledge, it has to be novel, and it has to be yours.
From society’s perspective, the rationale for allowing temporary individ- ual ownership of new knowledge is that in time all members of society will gain. Intellectual property protection provides an incentive for creative acts, for progress. It adds ‘‘the fuel of interest to the fire of genius,’’ said Abraham Lincoln.
‘‘Traditional knowledge’’ can be a useful analytical concept, but know- ledgeable persons warn against over-drawing the distinction between it and
‘‘modern knowledge’’ (Visser, 2004;Wu¨ger, 2004). An obvious part of this warning is a straightforward point: no one’s life is entirely ‘‘traditional,’’ no one’s life is entirely ‘‘modern.’’ Traditional versus modern is better thought