Knowledge

Legal and political strategies for “protecting” traditional environmental knowledge in Penticton, Okanagan Nation (British Columbia)

Sean Robertson

Claire Polster, Associate Professor, Department of Sociology, University of Regina

a talk prepared for the October, 2006, conference sponsored by the
Canadian Association of University Teachers,
“Controlling Intellectual Property – The Academic Community and the Future of Knowledge”

I had a lot of difficulty deciding how to approach my talk for today. After much grappling, I realized that some of the difficulty stemmed from my interpretation of how this talk was framed for me by the conference organizers. As you can see in the program, I was asked to talk about "alternatives" to private ownership or to the privatization of academic knowledge. I understood - and still understand - the term "alternatives" to mean other things that we can do besides privatization, other options or choices that we might make either to limit it or to mitigate its harmful effects. The problem for me with the question of alternatives is that it can implicitly suggest and accept that privatization is here to stay. It asks what can we do in addition to it or instead of it, rather than what we can do to directly oppose it. Today, rather than advocating various alternatives to the university's involvement in intellectual property, I want to make the case for directly opposing it. After presenting my case to you, I will defend it by critiquing a number of alternatives that have been put forward by others.

Meera Nair (Doctoral Student)
School of Communication, Simon Fraser University
The Commons Conference Presentation, June 2006

On 20 June 2005 the Federal Government of Canada unveiled Bill C-60, An Act to Amend the Copyright Act, ostensibly necessary to modernize copyright for the digital age. The discourse that preceded the tabling of this bill showed a clear bias to extend the depth and breadth of copyright, at the expense of the public’s right to access creative endeavour. In this paper I examine the issue of educational licensing of the Internet. A contentious matter, it was removed from Bill C-60 but appears poised* to return. As Canada sits at the policy crossroads, it would be prudent to draw attention to the environment of the proposal at its inception, rather than be critical after implementation.

Creative endeavor implicitly relies on cultural borrowings—as Northrop Frye wrote, “Poetry can only be made out of other poems, novels out of other novels ….” The source of these borrowings is often identified as an intellectual common—the public domain—where past copyrighted work lies available for public use. What lies unseen is the common within ourselves—our individual creative efforts provide fodder to others, while still protected by copyright. Passage to this common is granted by the current, legitimate, copyright exception of fair dealing. Fair dealing ensures that we reciprocate for our own cultural borrowings, and share accordingly.

Educational licensing, tantamount to commodifying passage to the common within, can only introduce unnecessary fiscal strain to education in Canada and will erode the meaning of fair dealing. A meaning which has been recognized for more than two hundred years; in 1802, in Cary v. Kearsley, Lord Ellenborough said, “[A] man may fairly adopt part of the work of another: he may so make use of another’s labours for the promotion of science, and the benefit of the public.”

Vandana Shiva, Peace Review, 12:4 (2000), 501-508

Western intellectual property rights (IPR) regimes have emerged as major
instruments of North–South inequality. Not only do they block technology
transfer, they facilitate piracy of the indigenous knowledge and biodiversity of
Third World countries. They could, if not revised and reviewed, make northern
countries into the monopoly owners of knowledge, including knowledge that has
evolved cumulatively and collectively in indigenous cultures, selling it at high cost
to already impoverished and indebted countries of the South, pushing them
further into poverty and debt. Since the majority of the people in the South
depend on biodiversity for their livelihoods and survival, the hijack of their
resources and knowledge through IPRs is the hijack of their lives and livelihoods.

David M. Berry Giles Moss, Free Software Magazine n. 2, March 2005

A constellation of interests is now seeking to increase its
ownership and control of creativity. We are told that these
interests require new laws and rights that will allow them to
control concepts and ideas and protect them from exploita-
tion. They say that this will enrich our lives, create new
products and safeguard the possibility of future prosperity.
But this is a disaster for creativity, whose health depends on
an ongoing, free and open conversation between ideas from
the past and the present.

Peter Evans, Studies in Comparative International Development, Summer 2005, Vol. 40, No. 2, pp. 85-94.

The relationship between property rights and development has always been a central
concern for both theorists and policy makers. The growing role of information and
communications technology in the economies of both North and South intensifies
the salience of this issue. This commentary extends the discussion of the two visions
of property rights that are introduced by Weber and Bussell (2005). In one, property
rights are restructured along the lines pioneered by the open-source software com-
munity to create a “new commons” of productive tools; in the other, Northern cor-
porations successfully defend their politically protected monopoly rights over
intangible assets and even extend them through a “second enclosure movement” to
an ever larger set of ideas, information, and images. Currently, the second enclosure
movement remains dominant, but which of these visions is likely to predominate in
the longer run depends on the interests and potential power of key actors and on the
possibilities for alliances among them—not just Northern corporations, but South-
ern states and private entrepreneurs, as well.

Access to information raises a whole suite of questions about democracy, public participation, confidentiality, competition, and, indeed, intellectual property rights. More fundamentally, however, access to information goes to the question of whether information should be privately held and controlled or part of the public domain. Responses to this issue are not necessarily going to be the same in all contexts but this paper begins an examination of the conflict between public and private through an analysis of the regulation of biotechnology in Canada.

The thinking behind the paper was not one of presenting another case where privatization is winning at the expense of the public so the analysis may be disappointing from this perspective. Nonetheless, I think the paper can certainly be a starting point for these sorts of discussions – discussions that only become more important with attempts to extend data exclusivity requirements in the intellectual property chapters of international trade agreements and to expand the scope of copyright protection as is currently being attempted through Bill C-60 in Canada.

The Quaker International Affairs Programme in Ottawa is pleased to announce the release of our fifth Issues Paper on "Rethinking innovation, development and intellectual property in the UN: WIPO and beyond" by Sisule Musungu.

This paper can be downloaded from our website at http://www.qiap.ca/pages/publications.html

The unacknowledged convergence of open source, open access, and open science

by John Willinsky

First Monday, volume 10, number 8 (August 2005)

Abstract
A number of open initiatives are actively resisting the extension of intellectual property rights. Among these developments, three prominent instances — open source software, open access to research and scholarship, and open science — share not only a commitment to the unrestricted exchange of information and ideas, but economic principles based on (1) the efficacy of free software and research; (2) the reputation–building afforded by public access and patronage; and, (3) the emergence of a free–or–subscribe access model. Still, with this much in common, the strong sense of convergence among these open initiatives has yet to be fully realized, to the detriment of the larger, common issue. By drawing on David’s (2004; 2003; 2000; 1998) economic work on open science and Weber’s (2004) analysis of open source, this paper seeks to make that convergence all the more apparent, as well as worth pursuing, by those interested in furthering this alternative approach, which would treat intellectual properties as public goods.
Contents
Principle One: Before software was open, it was free
Principle Two: The economics of patronage
Principle Three: Free or subscribe
The unacknowledged convergence

On the 'Creative Commons': A Critique of the Commons without Commonalty
David M. Berry & Giles Moss
Free Software Magazine, No. 5, June 2005

Is the Creative Commons missing something?

On the face of it, the Creative Commons project appears to be a success. It has generated interest in the issue of intellectual property and the erosion of the 'public domain', and it has contributed to re-thinking the role of the 'commons' in the 'information age'. It has provided institutional, practical and legal support for individuals and groups wishing to experiment and communicate with culture more freely, and a growing number of intellectual and artistic workers are now enrolling in the Creative Commons network and exercising the agency and freedom it has made available. Yet despite these efforts, questions remain about the Creative Commons project's aims and intentions and the vision of free culture that it offers. And these questions become all the more significant as the Creative Commons develops into a more influential and voluble 'representative' and public face for libre culture.