IP The South America Way II: The Empire of the Imagination Strikes Back

I’m continuing to blog Dr. Gandelman’s 2001 treatise on Brazilian intellectual property law in an international context (above).

I’m being lazy and skipping a huge, detailed section about the 1973 IP law in Brazil and the 1998 Cardoso-era law that revoked and replaced it.

The rest contains some useful discussion for me in my thinking about reactions to the internationalization of the Creative Commons: a thorough review of the 1993 WIPO (OMPI in Portguese) conference at Harvard (6.2); a sharp summary of the international dimension of the problem, with an evaluation of the DMCA alongside alternative proposals (8.5); an imaginary interview with Bill Gates (10.1); a capsule review of LESSIG’s Code and other laws of cyberspace (10.2.2); and finally a discussion of an alternative framework articulated by French jurist Andre Francon in the Revue Internationale du Droit d’Auteur (10.3):

My translation of Dr. Gandelman’s translation:

The classical framework for authorial rights, in which any use of a work presupposes previous authorization from the author, seems inadequate to us. For that reason, the pessimists are quick to conclude that intellectual property is in crisis. Some even speak of its decadence, others of its imminent demise.

This appraisal of the situation is without a doubt excessively negative. Today, as yesterday, the need to stimulate intellectual creation justifies maintaining authorial rights, even if the facts cited above do indicate that the [tangential] field of intellectual property is evolving.

I’m going to come back to this later, but suffice it to say that there is a substantial body of international thought that, in compliance with NMM Slogan No. 7: resist the “technological sublime” — takes a skeptical stance toward the all too familiar rhetoric of revolution, apocalypse, rapture, radical institutional discontinuity and the “death of history” visible in the very title of the “digital millenium” act of Congress.

It’s an historicist intellectual tendency that does not jump to the conclusion that there are no useful solutions to be found in the “prior art.”

(Reminds me a bit of an editorial I read the other day in the Australian business press: The world is not going to end if Doha dies.)

It’s a tendency genuinely devoted to the notion that we stand on the shoulders of giants, and to Santayana’s dictum about history, often cited but seldom practiced.

Even Richard Lanham’s The Economics of Attention, a very popular read among the evangelists of the “new public media” crowd these days, quite explicitly begins with just this approach to the problem. The first sentence of the Preface:

This book had its origins in a narrow question: What’s new about the digital expressive space, and what’s not? … What’s next for text?

Without prejudging the outcome of an eventual debate over what is baby and what is bathwater, I think this is a counter-tendency in serious need of a publicist, or an Ecclesiastes-style evangelist, of its own: Nihil sub solum novum est.

There are some around, albeit without the resources of large multinational corporations like Microsoft and the U.S. Dept. of State behind them that the iCommons, with its iTunes branding synergy, enjoys.

I’ll turn to them next, when I get a chance.