The long tail of the rainbow serpent: New technologies and the protection and promotion of traditional cultural expressions

Intellectual Property and Traditional Cultural Expressions in a Digital Environment

Volumn , Issue , 2008, Pages 205-236

  Burri Nenova, Mira ^a  

^a UNIVERSITY OF BERN   (Switzerland)

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EID: 78449287199     PISSN: None     EISSN: None     Source Type: Book    
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References (78)

1. Bellagio Declaration, formulated at the Rockefeller Conference: Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post Colonial Era, 11 March 1993, Bellagio, Italy (reproduced in James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society, Cambridge, MA: Harvard University Press, 1996, at pp. 196-200). See also Mihály Ficsor, The Law of Copyright and the Internet, Oxford: Oxford University Press, 2002, at paras 10.67 et seq.
2. See further infra Section 2
3. Committee on Economic, Social and Cultural Rights, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of Which He Is the Author (Article 15(1)(c)), UN Doc. E/C.12/2005, 21 November 2005 (hereinafter General Comment No. 17). On General Comment No. 17, see Laurence R. Helfer, "Towards a Human Rights Framework for Intellectual Property" (2007) UC Davis Law Review 40, pp. 971-1020; Peter K. Yu, "Reconceptualizing Intellectual Property Interests in a Human Rights Framework" (2007) UC Davis Law Review 40, pp. 1039-1149; Hans Morten Haugen, "General Comment No 17 on 'Authors' Rights'" (2007) The Journal of World Intellectual Property 10:1, pp. 53-69.
4. Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights, UN Doc. A/6316 (1966), 993 UNTS 3, 16 December 1966, entered into force 3 January 1976.
5. Emphases added
6. See in particular the contributions of Christoph Beat Graber, Martin A. Girsberger and Wend B. Wendland. For a brief overview of the issues pertinent to TCE, see Michael Blakeney, "Hans Christian Andersen and the Protection of Traditional Cultural Expressions" in Helle Porsdam (ed.), Copyright and Other Fairy Tales: Hans Christian and the Commodification of Creativity, Cheltenham, UK: Edward Elgar, 2006, pp. 108-128.
7. See Howard Morphy, Aboriginal Art, London: Phaidon, 1998, at pp. 67-100.
8. Erica-Irene Daes, Discrimination against Indigenous Peoples: Study on the Protection of the Cultural and Intellectual Property of Indigenous Peoples, E/CN.4/Sub.2/1993/28, New York: United Nations Economic and Social Council, Commission on Human Rights, 1993, at para. 21.
9. Under IPR as a general category, one understands the rights granted to creators and inventors to control the use made of their productions. They are traditionally divided into two main branches: (i) "copyright and related (or neighbouring) rights" for literary and artistic works and (ii) "industrial property", which encompasses trademarks, patents, industrial designs, geographical indications and the layout designs of integrated circuits.
10. US Constitution, at Article I, Section 8, para. 8.
11. See e.g. Laurence R. Helfer, "Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking" (2004) The Yale Journal of International Law 29:1, pp. 1-83.
12. Rosemary J. Coombe, Steven Schnoor and Mohsen Ahmed, "Bearing Cultural Distinction: Informational Capitalism and New Expectations for Intellectual Property" (2007) UC Davis Law Review 40, pp. 891-917, at p. 916, referring to Wend B. Wendland, "Intellectual Property and the Protection of Cultural Expressions: The World of the World Intellectual Property Organization" in F. Willem Grosheide and Jan J. Brinkof (eds), Intellectual Property Law 2002, Antwerp: Intersentia, 2003, at pp. 101, 103.
13. See e.g. Wendy J. Gordon, "Intellectual Property" in Peter Can and Mark Tushnet (eds), Oxford Handbook of Legal Studies, Oxford: Oxford University Press, 2003, Chapter 28, pp. 617-646; William M. Landes and Richard A. Posner, The Economic Structure of Intellectual Property Law, Cambridge, MA: Belknap Press of Harvard University, 2003, at pp. 11-123; Wendy J. Gordon and Robert G. Bone, "Copyright" in Boudewijn Bouckaert and Gerrit De Geest (eds), Encyclopaedia of Law and Economics, Cheltenham, UK: Edward Elgar, 2000, pp. 189-215.
14. US Supreme Court, Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S. Ct. 2764 (2005), referring to Sony Corp. of America v. Universal City Studios, Inc.
15. U.S. 417 (1984), at 442. For a case note, see Urs Gasser and John G. Palfrey, Jr., "Catch-As-Catch-Can: A Case Note on Grokster" (2006) Swiss Review of Business and Financial Market Law 78:2, pp. 119-126 and Tim Wu, "The Copyright Paradox - Understanding Grokster" (2006), Supreme Court Review, 2006. See also Jane C. Ginsburg, "Copyright and Control over New Technologies of Dissemination" (2001) Columbia Law Review 101:7, pp. 1613 et seq.; Douglas Lichtman and William M. Landes, "Indirect Liability for Copyright Infringement: An Economic Perspective" (2003) Harvard Journal of Law and Technology 16:1, pp. 395-410.
16. Vaidhyanathan notes in this regard: "Copyright in recent years has certainly become too strong for its own good. It protects more content and outlaws more acts than ever before. It stifles creativity and hampers the discovery and sharing of culture and knowledge". See Siva Vaidhyanathan, "The Googlization of Everything and the Future of Copyright" (2007) UC Davis Law Review 40, pp. 1207-1231, at p. 1210. Sharing this position, see also David Bollier, Silent Theft: The Private Plunder of Our Common Wealth, London: Routledge, 2003; Lawrence Lessig, Code and Other Laws of Cyberspace, New York: Basic Books, 1999; Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, London: Penguin, 2004; Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity, New York: New York University Press, 2003.
17. See also Christoph Beat Graber, "Traditional Cultural Expressions in a Matrix of Copyright, Cultural Diversity and Human Rights" in Fiona Macmillan (ed.), New Directions in Copyright Law: Vol. 5, Cheltenham, UK: Edward Elgar, 2007, pp. 45-71.
18. "In contrast to human rights, intellectual property rights are generally of a temporary nature, and can be revoked, licensed or assigned to someone else. While under most intellectual property systems, intellectual property rights, often with the exception of moral rights, may be allocated, limited in time and scope, traded, amended and even forfeited, human rights are timeless expressions of fundamental entitlements of the human person". See General Comment No. 17, at para. 2.
19. UNESCO, Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted at the 33rd Session of the General Conference of UNESCO, 20 October 2005, entered into force 18 March 2007 (hereinafter UNESCO Convention on Cultural Diversity). On the negotiating history, see Ivan Bernier, "A UNESCO International Convention on Cultural Diversity" in Christoph Beat Graber, Michael Girsberger and Mira Nenova (eds), Free Trade versus Cultural Diversity: WTO Negotiations in the Field of Audiovisual Services, Zurich: Schulthess, pp. 65-76.
20. Among others, "to protect and promote cultural diversity", "to create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner" and "to give recognition to the distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning". See UNESCO Convention on Cultural Diversity, at Article 1, points (a), (b) and (g), respectively.
21. "Cultural diversity" refers to the manifold ways in which the cultures of groups and societies find expression. These expressions are passed on within and among groups and societies. Cultural diversity is made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented and transmitted through the variety of cultural expressions, but also through diverse modes of artistic creation, production dissemination, distribution and enjoyment, whatever the means and technologies used. UNESCO Convention on Cultural Diversity, at Article 4(1).
22. Article 6(1) defines the core right of each of the State parties to "adopt measures aimed at protecting and promoting the diversity of cultural expressions within its territory". TCE are mentioned only in a cursory manner in the Convention in para. 13. Para. 15, Article 2 and Article 7(1)(a) refer further to indigenous peoples. See also Nicole Aylwin and Rosemary J. Coombe, "Cultural Pluralism Protects Traditional Knowledge", 2006, available at http://www.wacc.org.uk/wacc/publications/ media_development/2006_3/cultural_pluralism_protects_traditional_knowledge.
23. IPRs are mentioned only in the preamble of the Convention
24. Article 20(1) states that, "[p]arties recognize that they shall perform in good faith their obligations under this Convention and all other treaties to which they are parties. Accordingly, without subordinating this Convention to any other treaty, (a) they shall foster mutual supportiveness between this Convention and the other treaties to which they are parties; and (b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention". Article 20(2) adds on the other hand that, "[n]othing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties". See Christoph Beat Graber, "The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO" (2006) Journal of International Economic Law 9:3, pp. 553-574.
25. See Articles 5-10 of the UNESCO Convention on Cultural Diversity. For a critique of the lack of binding obligations, see Keith Acheson and Christopher Maule, "Convention on Cultural Diversity" (2004) Journal of Cultural Economics 28, pp. 243-256; Rachael Craufurd Smith, "The UNESCO Convention on the Protection and Promotion of Cultural Expressions: Building a New World Information and Communication Order" (2007) International Journal of Communication 1, pp. 24-55.
26. See in particular the contribution of Martin A. Girsberger to this volume.
27. Generally, on complex adaptive systems, see e.g. Paul Cilliers, Complexity and Postmodernism: Understanding Complex Systems, London: Routledge, 1998; Yaneer Bar-Yam, Dynamics of Complex Systems, Boulder, CO: Westview, 2003. On networks, see Mark Newman, Albert-László Barabási and Duncan J. Watts (eds), The Structure and Dynamics of Networks, Princeton, NJ: Princeton University Press, 2006.
28. See in this sense Michael F. Brown, "Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property" (2005) International Journal of Cultural Property 12, pp. 40-61, at pp. 41-42.
29. Milton L. Mueller, "Digital Convergence and its Consequences: A Report on the Digital Convergence and Market Structures", 1999, available at http://dcc.syr.edu/ miscarticles/rp1.pdf. Gordon Moore of Intel postulated in 1965 that the transistor density on a single integrated circuit microchip would double approximately every 18 months. This rule showing the incredible pace of technological advance became known as Moore's Law and (unlikely as it may seem) is still valid. On Moore's Law, see e.g. Rob Frieden, Managing the Internet-Driven Change in International Telecommunications, Boston/London: Artech House, 2001, at pp. 17 et seq.
30. The concept was originally developed at Standard Telephones and Cable Ltd., England. For more on the development of optical fibre technology, see David Gillies and Roger Marshall, Telecommunications Law, Vol. 1, 2nd edn, London: Butterworths LexisNexis, 2003, at p. 19.
31. Metcalfe's Law holds that the potential value of network increases by the square of the number of nodes, while the Fibre Law holds that capacity doubles every nine months. See e.g. Chris Marsden, Jonathan Cave, Edward Nason, Andrew Parkinson, Colin Blackman and Jason Rutter, "Assessing Indirect Impacts of the EC Proposals for Video Regulation", RAND Europe, 2006, at pp. 72 et seq. Currently, almost all networks (in developed and even in developing countries) have become IPbased. See OECD, Information Technology Outlook 2006, Paris: OECD, 2007.
32. For a brief history of the Internet, see the Internet Society's account, available at http://www.isoc.org/ internet/history/brief.shtml.
33. For a precise explanation of how the world wide web functions, see Tim Berners-Lee et al., Architecture of the World Wide Web, Vol. 1, W3C Recommendation
34. December 2004, available at http://www.w3.org/TR/webarch/. For an overview of developments of the world wide web, see Jeremy G. Butler, "The Internet and the World Wide Web" in Dan Harries (ed.), The New Media Book, London: British Film Institute Publishing, pp. 40-51.
35. Technological developments stemming from the Internet technology like IPTV (Internet Protocol television) or video-on-demand will also be taken into consideration
36. Since technologies are in a constant state of flux, as a rule-of-thumb, any technological advance that has a bearing upon the means and conditions of communication and information distribution across the different layers (network/logic/applications/ content), will be relevant to the present discussion of TCE and new technologies
37. See Manuel Castells, The Information Age: Economy, Society and Culture, Vol. 1: The Rise of the Network Society, 2nd edn., Oxford: Blackwell, 2000. For an overview of the theories, see Frank Webster, Theories of Information Society, London: Routledge, 1995; Frank Webster (ed.), The Information Society Reader, London: Routledge, 2004.
38. Stylianos Papathanassopoulos, European Television in the Digital Age, Cambridge: Polity, 2002, at p. 14.
39. European Commission, Fifth Report on the Application of Directive 89/552/EEC "Television without Frontiers", COM(2006) 49 final, 10 February 2006, referring to the European Audiovisual Observatory, 2004 Yearbook
40. "For too long we've been suffering the tyranny of lowest-common-denominator fare, subjected to brain-dead summer blockbusters and manufactured pop. Why Economics. Many of our assumptions about popular taste are actually artifacts of poor supply-and-demand matching - a market response to inefficient distribution." Chris Anderson, The Long Tail: Why the Future of Business Is Selling Less of More, New York: Hyperion, 2006, at p. 16.
41. See generally Carl Shapiro and Hal R. Varian, Information Rules, Cambridge, MA: Harvard Business School Press, 1999. See with regard to the world wide web, F. Faloutsos, P. Faloutsos and C. Faloutsos, "On Power-Law Relationships of the Internet Topology" in Mark Newman, Albert-László Barabási and Duncan J. Watts (eds), The Structure and Dynamics of Networks, Princeton, NJ: Princeton University Press, 2006, pp. 195-206.
42. See in particular Clay Shirkey, "Power Laws, Weblogs, and Inequality" in Jon Lebkowsky and Mitch Ratcliffe, Extreme Democracy, 2003, available at http://www.extremedemocracy.com/, pp. 46-52; Erik Brynjolfsson, Yu Hu and Michael D. Smith, "Consumer Surplus in the Digital Economy: Estimating the Value of Increased Product Variety at Online Booksellers" (2003) MIT Sloan Working Paper No. 4305-03; Erik Brynjolfsson, Yu Hu and Michael D. Smith, "From Niches to Riches: The Anatomy of the Long Tail" (2006) Sloan Management Review 47:4, pp. 67-71; Erik Brynjolfsson, Yu Hu and Duncan Simester, "Goodbye Pareto Principle, Hello Long Tail: the Effect of Search Costs on the Concentration of Product Sales", February 2007, available at SSRN: http://ssrn.com/abstract=953587.
43. Chris Anderson, The Long Tail, Manifesto 10:1, 14 December 2004, available at http://www.changethis.com/ 10.LongTail.
44. Bluewin TV, for instance, which is a service of Swiss telecommunications operator Swisscom AG, currently offers its subscribers more than 500 video-ondemand films and over 100 TV channels and 70 radio stations, together with additional gadgets such as an electronic programme guide, a live pause function and remote recording via mobile phone or the Internet. See Neue Zürcher Zeitung, "Bluewin-TV von Swisscom geht auf Sendung", 31 October 2006..
45. James Grimmelmann, "The Structure of Search Engine Law", New York Law School Research Paper Series 06/07, No. 23. at p. 2, referring to John Battelle, The Search: How Google and Its Rivals Rewrote the Rules of Business and Transformed Our Culture, New York: Portfolio, 2005; David Vise and Mark Malseed, The Google Story: Inside the Hottest Business, Media, and Technology Success of Our Time, New York: Delta, 2006. A survey shows that only the act of sending or reading email outranks search engine queries as an online activity (PEW Internet and American Life Project, Search Engines, 2002, available at http://www.pewinternet.org/).
46. James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, and Nations, New York: Doubleday, 2003
47. Tagging, which is basically a process of creating labels for online content by attaching a keyword to a piece of information (e.g. a picture, article or video) is "a kind of next-stage search phenomenon", whereby online searching is advanced and personalised and digital material is organised in a tailored manner on top of existing formally defined classification schemes. See PEW Internet and American Life Project, Tagging, January 2007, available at http://www.pewinternet.org/ and David Weinberger, Everything Is Miscellaneous: The Power of the New Digital Disorder, New York: Doubleday, 2007.
48. See e.g. PEW Internet and American Life Project, The Broadband Difference: How Online Americans' Behaviour Changes with High-Speed Internet Communications at Home, 2002, available at http://www.pewinternet.org/.
49. Edwin Horlings, Chris Marsden, Constantijn van Oranje and Maarten Botterman, Contribution to Impact Assessment of the Revision of the Television without Frontiers Directive, RAND Europe, TR-334-EC DG, 1 November 2005, at p. 6. See also e.g. PEW Internet and American Life Project, More Online, Doing More, February
50. and Internet Penetration and Impact, April 2006; both available at http://www.pewinternet.org/.
51. Urs Gasser, "Social Structures in Cyberspace: The Design and Function of Digital Institutions", Discussion Paper presented at the 9th Annual Conference of the International Society for New Institutional Economics: The Institutions of Market Exchange", 22-24 September 2005, Barcelona, at para. 1. See also Marshall Van Alstyne and Erik Brynjolfsson, "Global Village or Cyber-Balkans Modeling and Measuring the Integration of Electronic Communities" (2005) Management Science 51:6, pp. 851-868.
52. See most prominently http://www.myspace.com/ or http://www.facebook. com/. To reveal the sheer dynamism of these networks, O'Reilly Radar shows that during the first quarter of 2006, 280 000 new users signed up each day to MySpace and it had the second-largest amount of Internet traffic. See John Musser with Tim O'Reilly, Web 2.0: Principles and Best Practices, O'Reilly Radar, November 2006, at p. 4.
53. Web 2.0 is a phrase coined by O'Reilly Media (http://www.oreilly.com/) in 2004. Proponents of the Web 2.0 concept say that it differs from early Web development (labelled Web 1.0) in that it moves away from static websites, the use of search engines and surfing from one website to the next, towards a more dynamic and interactive world wide web. See Tim O'Reilly, "What Is Web 2.0: Design Patterns and Business Models for the Next Generation Software", 30 September 2005, available at http://www.oreillynet.com/pub/a/oreilly/tim/news/2005/09/30/what-is-web-20.html. See also OECD, Participative Web: User-Created Content, DSTI/ICCP/IE(2006)7/ FINAL, 12 April 2007.
54. Yochai Benkler, "Freedom in the Commons: Towards a Political Economy of Information" (2003) Duke Law Review 52, pp. 1245-1276, at p. 1261.
55. Presently, Wikipedia has approximately 7.4 million articles in 253 languages (1.8 million in the English edition) and ranks among the top ten most-visited websites worldwide. See http://en.wikipedia.org/wiki/Wikipedia#_note-0.
56. See Don Tapscott and Anthony D. Williams, Wikinomics: How Mass Collaboration Changes Everything, New York: Portfolio, 2006; George Bragues, "Wiki-Philosophizing in a Marketplace of Ideas: Evaluating Wikipedia's Entries on Seven Great Minds", April 2007, available at http://ssrn.com/abstract=978177; Andrew Keen, The Cult of the Amateur: How Today's Internet Is Killing Our Culture, New York: Currency, 2007.
57. See e.g. Yochai Benkler, "Coase's Penguin, or Linux and the Nature of the Firm" (2002) Yale Law Journal 112, pp. 369-446; Carol M. Rose, "The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems" (1998) Minnesota Law Review 83, pp. 129-182; Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom, New Haven: Yale University Press, 2006.
58. See http://creativecommons.org/. There are also some other types of licences designed by the Creative Commons, such as public domain, developing nations, sampling, founder's copyright, GNU, Wiki and music sharing. The "developing nations" licence, for instance, allows a wide range of royalty-free uses of a work in developing nations, while retaining full copyright in the developed world.
59. See http://creativecommons.org/about/licenses/meet-the-licenses.
60. David Bollier, "Globalization and Diversity, UNESCO and Cultural Policymaking: Imperatives for US Arts and Culture Practitioners and Organizations", speech at the Smithsonian Institution, Washington, DC, 11 January 2005
61. Netherlands Council for Culture, From ICT to E-Culture: Advisory Report on the Digitalisation of Culture and the Implications for Cultural Policy, submitted to the State Secretary for Education, Culture and Science, June 2003 (English edition, August 2004), at p. 8. See also PEW Internet and American Life Project, Artists, Musicians and the Internet, December 2004, available at http://www.pewinternet.org/.
62. Even fora with broader agenda, such as the World Summit on the Information Society (WSIS), engage above all in this instrumentalisation aspect. See WSIS, Declaration of Principles, WSIS-03/Geneva/Doc/4-E, 12 December 2003; WSIS, Plan of Action, WSIS-03/Geneva/Doc/5-E, 12 December 2003; WSIS, Tunis Commitment, WSIS-05/Tunis/Doc/7-E, 18 November 2005; WSIS, Tunis Agenda for the Information Society, WSIS-05/Tunis/Doc,6(Rev.1)-E, 18 November 2005.
63. Forecasts show, for instance, that by 2020 a global, low-cost network will be available to most people worldwide. See PEW Internet and American Life Project, The Future of the Internet II, 24 September 2006.
64. Rosemary J. Coombe, "Protecting Cultural Industries to Promote Cultural Diversity: Dilemma for International Policy-Making Posed by the Recognition of Traditional Knowledge" in Keith E. Maskus and Jerome H. Reichman (eds), International Public Goods and Transfer of Technology under a Globalized Property Regime, Cambridge: Cambridge University Press, 2005, pp. 559-614, at p. 613.
65. For a critique, see Anupam Chander and Madhavi Sunder, "The Romance of the Public Domain" (2004) California Law Review 92, pp. 1331-1373. For a comprehensive analysis, see Charlotte Waelde and Hector MacQueen (eds), Intellectual Property: The Many Faces of the Public Domain, Cheltenham, UK: Edward Elgar, 2007.
66. John G. Palfrey, Jr. and Robert Rogoyski, "The Move to the Middle: The Enduring Threat of 'Harmful' Speech to the End-to-End Principle" (2006) Washington University Journal of Law and Policy 21, pp. 31-65.
67. The principle of net(work) neutrality or in its broader sense, the end-to-end principle, essentially holds that the network should be neutral to the content being passed and that intermediaries should pass all packets, while the intelligence is located at the edges of the network where necessary. For an excellent account of the "net neutrality" discussions, see Susan P. Crawford, "Network Rules" (2006) Benjamin N. Cardozo School of Law Working Paper No. 159; Tim Wu, "Network Neutrality, Broadband Discrimination" (2003) Journal on Telecommunications and High Technology Law 2, pp. 141-175. See also the contributions to the special issue on net neutrality of the (2007) International Journal of Communication 1, available at http://ijoc.org/.
68. See Graham Dutfield, "Promoting Local Innovation as a Development Strategy" (2006) Innovations: Technology, Governance, Globalization 1:3, pp. 67-77, at pp. 72-73, referring to the work of Anil K. Gupta, "From Sink to Source: The Honey Bee Network Documents Indigenous Knowledge and Innovations in India" (2006) Innovations: Technology, Governance, Globalization 1:3, pp. 49-66.
69. Rosemary J. Coombe, "Preserving Cultural Diversity through the Preservation of Biological Diversity: Indigenous Peoples, Local Communities, and the Role of Digital Technologies" in Fiona Miller et al. (eds.), The Gender of Genetic Futures, NNEWH Working Paper Series, September 2000, pp. 132-160, at p. 147.
70. Kansa et al. find the creative commons licence useful for TK/TCE protection and suggest ways in which it could be better moulded to correspond to the needs of indigenous communities. See Eric C. Kansa, Jason Schultz and Ahrash N. Bissell, "Protecting Traditional Knowledge and Expanding Access to Scientific Data: Juxtaposing Intellectual Property Agendas via a 'Some Rights Reserved' Model" (2005) International Journal of Cultural Property 12, pp. 285-314.
71. Lawrence Lessig offers some examples of CC spread. The first example comes from Brazil, at the site Overmundo (http://www.overmundo.com.br). This is a collaborative website designed to spread Brazilian culture. Its distinctive feature is that both its content and design are generated by users and everything made available on the site under a CC license. The Overmundo tools give users the capacity to rate the quality of contributed content. The community has built a "cultural database" with thousands of people sharing and making content widely available. In less than seven months, there have been more than 7000 contributors from all over Brazil. A second example comes from South Africa: ccMixter South Africa (http://www.ccmixter.co.za) is leading a unique cultural remixing competition, drawing upon the work of creators from both Brazil and South Africa. The competition is part of the "culturelivre" project, which is a joint effort of Creative Commons in Brazil and South Africa. To find samples for the competition, ccSA invited some of the most important custodians of musical heritage in South Africa - including the International Library of African Music (ILAM) - to produce short riffs using traditional African instruments. Among these instruments are the Mutumba drums, which are generally inaccessible on the Internet today. These drums were originally from Zimbabwe and used to accompany spiritual ceremonies that include dancing, singing, clapping and playing the mbira thumb piano. Young musicians entering the competition can remix these traditional sounds, and in the process, develop an understanding of the roots of music in both cultures. See Lawrence Lessig, cc letter, 16 November 2006, available at http://creativecommons. org/weblog/entry/6155.
72. Eric Kansa, "Finding Common Ground in the Digital Commons", 14 August 2007, available at http://icommons.org/articles/finding-common-ground-in-the-digitalcommons.
73. See Gunther Teubner and Andreas Fischer-Lescano's contribution to this volume, at p. 19.
74. Elizabeth Burns Coleman argues in this volume that TCE may indeed be perceived as more dynamic than modern cultural production
75. An excellent example in this regard is the story of the Seminole tribe, who is commercially very active and is now the owner of a number of casinos and the Hard Rock Café chain. See Rudolf Stumberger, "Der späte Sieg der Seminolen", Neue Zürcher Zeitung, 20 August 2007.
76. Michael F. Brown, "Heritage as Property" in Katherine Verdery and Caroline Humphrey (eds), Property in Question: Value Transformation in the Global Economy, Oxford/New York: Berg, 2004, pp. 49-68, at p. 60.
77. eIFL-IP "Advocacy for Access to Knowledge: Copyright and Libraries" is, for instance, a programme to raise awareness in copyright issues for libraries in 50 developing and transition countries. The goal is to build capacity and expertise amongst the eIFL.net library community and to represent the interests of members in key international policy fora, such as WIPO, UNESCO and the WTO. It seeks to clarify the role of digital technologies in transforming the way libraries work and fully considering the role of libraries in collecting, organising, preserving and making available the world's cultural and scientific heritage for current and future generations (in particular publicly funded libraries operating for the public benefit, which support access to knowledge, as well as education and training, critical to developing nations whose human resources are central to their advancement. See http://www.eifl.net/.
78. "Once we admit that there is room for newness - that there are vastly more conceivable possibilities that realized outcomes - we must confront the fact that there is no special logic behind the world we inhabit, no particular justification for why things are the way they are. Any number of arbitrarily small perturbations along the way could have made the world as we know it turn out very differently". See Paul Romer, "New Goods, Old Theory and the Welfare Costs of Trade Restrictions" (1994) Journal of Development Economics 43, pp. 5-38, at p. 9.