2009-02-27

The Multilateral Intellectual & Cultural Property Rights Regime

In his latest study, the Canadian cultural economist Harry Hillman Chartrand argues that 'cultural property' has been extended thru the 2005 UNESCO Convention on Cultural Diversity to include the so-called cultural industries. He also highlight the emerging split in the multilateral system between WIPO and UNESCO.

In Cultural Economics, Law is not a technical subject but rather a cultural artifact arising from the unique historical experience of a specific culture with its distinctive pattern of custom, habit and life ways (Schlicht 1998). More to the point, each system of Law has its own definition of what can be bought and sold, i.e., what is property? When one moves to the multilateral level one must therefore accept that: Law has become nation-specific; lawyers no longer form an international community (Merryman 1981, 359).

With respect to intellectual & cultural property rights (ICPRs -- Annex A-D), Law must look outside itself for guidance and understanding. Yet when Law looks outside itself the result can be unfortunate because the human mind tends toward fusion rather than discrimination, and the result is confusion (Dewey 1926, 670).

Law in fact looks out at intellectual property rights (IPRs) with three-faces: one faces trade regulation of a State sponsored monopoly; the second faces the natural or human rights of a creator or, alternatively, the rights of a Legal Person or body corporate; and, the third faces an ever growing public domain and the learning it engenders.

Law, in all Nation-States, however, operates in four dimensions: international, statutory, regulatory and case law. International law is made by Nation-States and International Organizations through the treaty-making process. For our purposes what is important is that to ratify a multilateral instrument often requires adjusting domestic laws.

Statutory law is made by domestic legislators in parliaments, legislatures, congresses, etc., while regulatory is made by bureaucrats domestic and international - interpreting and implementing a statute or treaty. Case law is made by judges domestic and international - interpreting and enforcing international, statutory and/or regulatory law.

Complicating matters, however, is that when judges make Law it is by setting precedent. In the Anglosphere this body of precedent is called the Common Law. If a similar case was resolved in the past, a current court is bound to follow the reasoning of that prior decision under the principle of stare decisis. The process is called casuistry or case-based reasoning.

If, however, a current case is different then a judge may set a precedent binding future courts in similar cases. Sometimes such precedents also compel legislators and bureaucrats to change statutory and regulatory law. This is especially true with respect to intellectual property rights.

Rapidly evolving technology, among other things, increasingly brings novel cases before the courts forcing legislators and bureaucrats to keep up or allow casuistry to run its course. The problem is that a court decision in a specific case can, for better or worse, establish path-dependency for emerging techno-economic regimes (David 1990), e.g., in biotechnology, software, etc. This reflects the more general psychological Law of Primacy: That which comes first affects all that comes after. In Law it is called precedent; in Economics path dependency.