Who Owns Tradition? Reconceptualizing the Protection of Indigenous and Traditional Knowledge
Friday, November 11, 2016
8:30 AM - 5:00 PM
This Fall, the Spangenberg Centre on Law, Technology and the Arts will be holding its annual conference on the issue of Intellectual Property, Traditional Knowledge, and Folklore. Focusing on the international aspects of the issue with a US perspective, the conference seeks to revisit and re-examine the theoretical discomfort, and sometimes outright rejection of the possibility of protection of GR, TK and Folklore in mainstream intellectual property discourse in developed countries. The conference will have a multidisciplinary approach drawing on scholarship in intellectual property, cultural and human rights, history and political science and anthropology.
After a hiatus of almost 2 years, the 2015 WIPO General Assembly renewed the mandate of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to resume negotiations on an international instrument for the protection of traditional knowledge. In the interim, national and regional legislation on the protection of genetic resources (GR), Traditional Knowledge (TK) and folklore has proliferated in developing countries, largely modeled on the options in the draft text on protection of TK and protection of folklore developed at WIPO. However, in developed countries like the US, Australia and Canada there nevertheless remain significant stakeholders with an interest in such protection, in particular, Native American tribes, Australian Aboriginal peoples and Canadian First Nations, and yet legislation on protection for GR, TK and Folklore has not been forthcoming. A major reason for this lies in the relatively rigid and calcified nature and history of intellectual property protection in such developed economies, making it much more difficult to graft new sui generis
forms of protection onto the existing system. Additionally, the theoretical framework justifying such protection has largely been missing from within the narrow intellectual property academic discourse in developed countries, which has largely found little to recommend such protection. With the new international momentum, it may be time to better understand the theoretical frameworks underlying claims for protection of GR, TK and Folklore and draw lessons from related fields of inquiry.
Continuing Legal Education Readings
Elizabeth Kronk Warner
Professor, University of Kansas School of Law
Elizabeth Kronk Warner joined the KU Law faculty in June 2012. Prior to her arrival at KU, Warner served on the law faculties at Texas Tech University and the University of Montana. In 2010, Warner was selected to serve as an Environmental Justice Young Fellow through the Woodrow Wilson International Center for Scholars and U.S.-China Partnership for Environmental Law at Vermont Law School. She has also served as a visiting professor at Xiamen University in Xiamen, China, and Bahcesehir University in Istanbul, Turkey. In 2014, Warner received the Immel Award for Excellence in Teaching, and in 2016 she received the Dean Frederick J. Moreau teaching and mentoring award from the graduating class. Her scholarship, which focuses primarily on the intersection of Indian Law and Environmental Law, is published in several prominent journals, including the Arizona Law Review, Colorado Law Review and Columbia Journal of Environmental Law. She is also co-author of the casebook Native American Natural Resources, and she co-edited "Climate Change and Indigenous People: The Search for Legal Remedies." In addition to teaching, Warner serves as an appellate judge for the Sault Ste. Marie Tribe of Chippewa Indians Court of Appeals in Michigan and as a district judge for the Prairie Band Potawatomi Nation in Kansas. Before entering academia, Warner practiced environmental, Indian, and energy law as an associate in the Washington, D.C. offices of Latham & Watkins LLP and Troutman Sanders LLP. Warner previously served as chair of the Federal Bar Association Indian Law Section and was elected to the Association’s national board of directors in 2011. She also served as chairwoman of the Kansas Advisory Committee to the U.S. Civil Rights Commission. She received her J.D. from the University of Michigan Law School and a B.S. from Cornell University. Warner is a citizen of the Sault Ste. Marie Tribe of Chippewa Indians.
Professor, University of Arizona, James E. Rogers School of Law
Rebecca Tsosie is a Regent’s Professor at the James E. Rogers College of Law at the University of Arizona and also serves as Special Advisor to the Provost for Diversity and Inclusion. Professor Tsosie, who is of Yaqui descent, is a faculty member for the Indigenous Peoples’ Law and Policy Program at the University of Arizona, and she is widely known for her work in the fields of Federal Indian law and indigenous peoples’ human rights. Prior to joining the U of A faculty, Professor Tsosie was a Regent’s Professor and Vice Provost for Inclusion and Community Engagement at Arizona State University. Professor Tsosie was the first faculty Executive Director for ASU’s Indian Legal Program and served in that position for 15 years. Professor Tsosie has published widely on sovereignty, self-determination, cultural pluralism, environmental policy and cultural rights. She teaches in the areas of Federal Indian Law, Property, Constitutional Law, Critical Race Theory, and Cultural Resources Law. Professor Tsosie is a member of the Arizona Bar Association and the California Bar Association. Professor Tsosie serves as a Supreme Court Justice for the Fort McDowell Yavapai Nation and as an Associate Judge on the San Carlos Tribal Court of Appeals. She received her B.A. and J.D. degrees from the University of California, Los Angeles.
J. Janewa Osei-Tutu
Associate Professor, Florida International University School of Law
Professor J. Janewa Osei-Tutu is an Associate Professor of Law at Florida International University College of Law in Miami, where she teaches contract law and a variety of intellectual property law courses. Osei-Tutu writes about international intellectual property law and its impact on society. Professor Osei-Tutu obtained her LL.M (Distinction) in International & Comparative Law from McGill University (Canada), where she wrote her graduate thesis, TRIPS and Domestic Control: Implications for Developing Countries. She holds a J.D. from Queen’s University (Canada) and a B.A. (Hons.) from the University of Toronto.
Prior to joining the legal academy in 2012, Osei-Tutu practiced law for a number of years as an attorney with the Canadian Department of Justice. In that capacity, she advised the Canadian government on domestic and international intellectual property law matters.
Professor, University of New South Wales, Australia
Dr Kathy Bowrey is Professor in the Faculty of Law at the University of New South Wales, Sydney Australia.
She is a leading international scholar of intellectual property, cultural heritage and interdisciplinary research into the arts and sciences. Her socio-legal research is historically grounded and politically charged. She engages with cutting edge theoretical developments, applied to analysis of major and everyday cultural, political and technological challenges and controversies. She is a founding member of The International Society for the History and Theory of Intellectual Property (ISHTIP) and served as Chair of the Steering Committee, Indigenous Law Centre (UNSW) from 2011-2015. Prof Bowrey was a member of the Advisory Committee, Australian Law Reform Committee Copyright Reference, 2012-2014. Recents grants include a Major Research Equipment and Infrastructure Initiative grant to support the development of an Australian Indigenous Law Library— a national repository of significant primary legal resources relating to Indigenous legal issues.
Professor, Emory University, School of Law
Bagley served on the National Academy of Sciences Committee on University Management of Intellectual Property: Lessons from a Generation of Experience, Research, and Dialogue. She is also an expert technical advisor to the Government of Mozambique in several World Intellectual Property Organization matters and was a member of the Scientific Committee of the 2013 European Policy on Intellectual Property Conference in Paris, France. Her scholarship focuses on comparative issues relating to patents and biotechnology, pharmaceuticals, and technology transfer. Bagley has published numerous articles and book chapters, as well as two books with co-authors: Bagley, Okediji and Erstling, International Patent Law & Policy (West Publishing 2013) and Patent Law in Global Perspective (Okediji and Bagley eds., Oxford University Press 2014). She also recently authored a report on Digital DNA: Synthetic Biology, Intellectual Property Treaties, and the Nagoya Protocol, commissioned by the Woodrow Wilson International Center for Scholars. A chemical engineer with a B.S. Ch.E. degree from the University of Wisconsin-Madison, Bagley worked in industry (with the Procter & Gamble Company and the Coca Cola Company) for several years before attending law school, and is a co-inventor on a patent for reduced fat peanut butter. Her courses include U.S. and international & comparative patent law, trademark law, and intellectual property.
Professor, School of Law, University of Leeds, UK
Graham Dutfield is founding director of the LLM in Intellectual Property Law, and of the Research Group on Emerging Technologies in Law and Society, both at the University of Leeds, UK. He has published numerous articles and several books including Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (with D Posey), Global Intellectual Property Law (with U Suthersanen), and Intellectual Property Rights and the Life Science Industries: Past, Present and Future. He has a DPhil from the University of Oxford.
Assistant Professor, University of Montana School of Law
Professor Cathay Smith teaches in the areas of intellectual property, property, and art and cultural property at the University of Montana Blewett School of Law. Prior to joining the faculty at the University of Montana, Professor Smith taught at the University of Denver Sturm College of Law, and practiced as an intellectual property attorney in Chicago. Professor Smith received her B.S. with Special Attainments in Commerce from Washington and Lee University, her J.D. from Loyola University Chicago School of Law, and her MSc. in Law, Anthropology and Society from The London School of Economics and Political Science. Her research interests are in intellectual property law, art law, and cultural property and heritage law.
Olufunmilayo B. Arewa
Professor, UC Irvine School of Law
Olufunmilayo B. Arewa is Professor of Law and Anthropology (by courtesy) at the University of California, Irvine School of Law, where she has taught a number of courses including Securities Regulation, Business Associations, Private Equity, Corporate Finance, Accounting, Investment Management Regulation, Intellectual Property, and African Legal Systems. She received an M.A. and Ph.D. (Anthropology) from the University of California, Berkeley, an A.M. (Applied Economics) from the University of Michigan, a J.D. from Harvard Law School, and an A.B. from Harvard College. Her major areas of scholarly research include music, copyright, film, business, technology, and Africana studies. Prior to becoming a law professor, she practiced law for nearly a decade, working in legal and business positions in the entrepreneurial and technology startup arena, including law firms and companies in New York and the Silicon Valley. She also served as Chief Financial Officer and General Counsel of a venture capital firm in Boston. Before becoming a lawyer, she was a Visiting Lecturer at the Center for Afroamerican and African Studies (CAAS) at the University of Michigan and served as a Foreign Service Officer in the U.S. Department of State in Washington, D.C. and Montevideo, Uruguay. She has been a professor in the University of Alabama Online Business Law LLM Program, visiting professor at the University of Georgia School of Law, and a visiting researcher at Humboldt Universität zu Berlin. In 2015 she received a German Academic Exchange Service (DAAD) Faculty Visit Research Grant for a research project entitled Cultural, Legal, and Business Considerations in the Diffusion of Jazz in Germany. She has served as Vice Chair of the Nigeria Copyright Expert Working Group, a consultant for the World Bank Institute and the Nelson Mandela Institution on projects relating to education and scientific and technological capacity in Africa, and a lead consultant for a project examining the feasibility of establishing a venture capital fund in the Eastern Caribbean. Professor Arewa is a trained classical singer and has studied classical voice for many years.
Policy Analyst, Tulalip Tribes, Washington State
Professor Preston Hardison is a natural resources treaty rights policy analyst for the Tulalip Tribes of Washington. He has participated in meetings of the Convention on Biological Diversity (CBD) since 1996, and participated in the discussions and negotiations on access and benefit sharing for genetic resources from 2000 to 2010. For the last two years, he was selected as one of the lead indigenous negotiators of what is now known as the Nagoya Protocol.
Mr. Hardison has authored a paper on traditional knowledge registers and coauthored a paper on the role of customary law in access and benefit sharing for the Secretariat of the CBD. He has served on the Ad Hoc Informal Advisory Body for the Clearinghouse Mechanism of the CBD since 1997, and has participated in the development of several biodiversity information networks and a tribal traditional knowledge database system.
ASU, Foundation Professor of Law, Keynote
Robert N. Clinton currently serves as the Foundation Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University and as an Affiliated Faculty member of the ASU American Indian Studies Program. He is also a Faculty Fellow in the Center for Law Science & Innovation. He is also an Affiliated Faculty member of the ASU Center on the Future of War.
Professor Clinton was born and raised in the Detroit, Michigan metropolitan area. He did his undergraduate work at the University of Michigan where he received a B.A. in political science and attended the University of Chicago Law School, receiving his J.D. After private practice in Chicago with the law firm then known as Devoe, Shadur and Krupp, he joined the faculty of the University of Iowa College of Law in 1973, where he taught until 2000. While at the University of Iowa College of Law, Professor Clinton served as the Wiley B. Rutledge Professor of Law and as a founder and an Affiliated Faculty Member of the American Indian and Native Studies Program of the University of Iowa College of Liberal Arts. For the 2001-2003 academic years, Professor Clinton was appointed the Barry Goldwater Chair of American Institutions at Arizona State University.
Professor Clinton has visited as a scholar or teacher at the law schools of the University of Michigan, Arizona State University, Cornell University, University of San Diego and the Faculty of Law of Victoria University in Wellington, New Zealand. Additionally, he has taught in the Pre-Law Summer Institute for American Indian and Native Alaskan Students sponsored by the American Law Center, Inc.
Professor Clinton serves as Chief Justice of the Winnebago Supreme Court and the Hopi Appellate Court and as an Associate Justice for the Colorado River Indian Tribes Court of Appeals, and the Hualapai Court of Appeals, and as a Judge pro tem for the San Manuel Band of Serrano Mission Indians Tribal Court. He also served for twenty years as an Associate Justice of the Cheyenne River Sioux Court of Appeals, served as a temporary judge or arbitrator for other tribes, and acted as an expert witness or consultant in Indian law, copyright, and cyberlaw cases.
Professor Clinton teaches and writes about federal Indian law, tribal law, Native American history, constitutional law, federal courts, cyberspace law, copyrights, and civil procedure. His publications include numerous articles on federal Indian law and policy, constitutional law, and federal jurisdiction. He is the co-author of casebooks on Indian law and federal courts, The Handbook of Federal Indian Law (1982 ed.), multiple editions of American Indian Law: Native Nations and the Federal System, Colonial and American Indian Treaties (a collection on CD-ROM ), and over 25 major articles on federal Indian law, American constitutional law and history, and federal courts. Dorothy Noyes
Professor, The Ohio State University
Dorothy Noyes (PhD University of Pennsylvania, 1992) is Professor in the Departments of English and Comparative Studies, a faculty associate of the Mershon Center for International Security Studies, and past director of the Center for Folklore Studies, all at the Ohio State University. Her ethnographic and historical research addresses the traditional public sphere in Romance-speaking Europe she also writes on folklore theory and on the international policy careers of culture concepts. She is the author of Fire in the Plaça: Catalan Festival Politics After Franco (University of Pennsylvania Press, 2003) Humble Theory: Folklore’s Grasp on Social Life (Indiana University Press 2016) and the forthcoming Sustaining Interdisciplinary Collaboration: A Guide for the Academy (coauthored with Regina F. Bendix and Kilian Bizer, University of Illinois Press, April 2017). A Fellow of the American Folklore Society, she teaches courses in folklore and performance theory, American regional cultures, fairy tale, poetry and politics, the cultural history of trash, and cultural diplomacy.
Professor, Faculty of Law, University of Ottawa
Dr. Chidi Oguamanam is a full Professor affiliated with the Centre for Law, Technology, and Society, the Centre for Environmental Law and Global Sustainability and the Centre for Health Law, Policy & Ethics at the University of Ottawa. He holds LL.M and a Ph.D. in law from the University of British Columbia. His research examines the practical link in law and policy around biodiversity conservation, indigenous knowledge, and intellectual property in the contexts of the use of plant genetic resources for food, agriculture, medicines and for therapeutic interventions within both traditional knowledge and western science. His research explores the dynamics of legal regimes, especially intellectual property and traditional knowledge within the global governance of knowledge and development discourses. Professor Oguamanam’s publications include International Law and Indigenous Knowledge (University of Toronto, 2010) and Intellectual Property in Global Governance (Routledge, 2012), and Innovation and Intellectual Property: Collaborative Dynamics in Africa (University of Cape Town, 2014) (co-editor). He is presently involved in two major research initiatives, the Open African Innovation Research (openair.org.za) and Access and Benefit Sharing Canada (abs-canada.org).
Professor, OSU School of Law
Professor Guy A. Rub is Associate Professor of Law at the Ohio State University Moritz College of Law. He is an expert in the intersection between intellectual property law, contract law, and economic theory. His work explores how markets shape and are being shaped by intellectual property law. His publications have appeared or are forthcoming in the Chicago Law Review, Harvard Journal of Law and Technology, Yale Law Journal Forum, and Emory Law Journal, among others. He presented his work extensively both domestically and abroad.
Professor Rub has studied law on three continents. He holds an SJD degree and an LL.M. degree from the University of Michigan Law School a master’s degree in Law & Economics from the University of Madrid a European Master in Law and Economics from the Erasmus University in Rotterdam, Netherlands and an LL.B. degree from Tel-Aviv University. He was a law clerk to the Honorable Rina S. Meshel of the Tel-Aviv Appellate Court. Prior to joining Moritz, he was practicing at Munger, Tolles & Olson LLP in Los Angeles. Professor Rub also holds a bachelor’s degree in computer science from Tel-Aviv University and worked as a software programmer and engineer prior to pursuing a career in law.
Dalindyebo B. Shabalala
Visiting Assistant Professor, CWRU Law School
Dalindyebo Shabalala is a Visiting Assistant Professor at the law school. His primary teaching responsibilities are in intellectual property and business law. He teaches the core Business Associations course, and has taught Mergers and Acquisitions. His core areas are in the World Intellectual Property Organization (WIPO) Research Lab and in the International Intellectual Property Seminar. The WIPO Lab, run every Spring semester in partnership with the WIPO Traditional Knowledge Division, explores cutting-edge issues directly at the interface between research and policy in international intellectual property. Prof. Shabalala also teaches the International Intellectual Property seminar in the Fall which is run as an international negotiation on an update of the TRIPS Agreement, part of his commitment to experiential learning.
Prof. Shabalala’s research focuses on the interaction of intellectual property law, especially patent law, with the rights of indigenous peoples and climate change law. He conducts research on the rights of indigenous peoples and traditional communities to their traditional knowledge and culture and the role of international intellectual property treaties in enabling or preventing the realization of those rights. Prof. Shabalala is Director of the Institute on Traditional Knowledge and Intellectual Property, which officially launches in November 2016, through which he conducts his core research. As part of the institute’s work he partners with indigenous representatives and civil society organizations in negotiations on traditional knowledge at WIPO, the Convention on Biological Diversity and the WTO.
Prof. Shabalala also conducts research on the interaction of patent law with climate change, focusing on the role of technology licensing and transfer in enabling the technology goals of the climate change convention (UNFCCC). His current research in this area is a long-term collaboration with researchers in India, Brazil, China and South Africa to identify technology transfer and licensing measures that these countries have taken that may or may not be in compliance with their obligations under the TRIPS Agreement. He is co-chair of the Climate Action Network Technology Working Group and serves as the Environmental NGO representative to the UNFCCC Technology Executive Committee’s Task Force on Innovation, Research, Development and Demonstration. He continues to provide advice on patent law and technology licensing to developing countries and civil society organizations in climate change negotiations.
Prof. Shabalala participates in the Spangenberg Center for Law, Technology & the Arts (which sponsors the Traditional Knowledge and Intellectual Property Institute), and the Frederick K. Cox Center for International Law at CWRU.
Prof. Shabalala has published in several edited volumes, and has published a book “Climate Change, Technology Transfer and Intellectual Property – Options for Action at the UNFCCC”, Maastricht University (2014) available in print from Amazon and electronically. His reflections on his research and policy work can be found on his blog. Previously, Prof. Shabalala was Assistant Professor of international Economic Law (Intellectual property) at Maastricht University in the Netherlands. He taught European and Comparative intellectual property at the Masters level and remains a fellow in Institute for Globalisation and International Regulation (IGIR) (www.igir.org). Shabalala was Managing Attorney of the Center for International Environmental Law’s Geneva office, and Director of CIEL's Intellectual Property and Sustainable Development Project. He focused on issues at the intersection of intellectual property and climate change, human health, biodiversity and food security, as well as addressing systemic reform of the international intellectual property system. He is now a member of CIEL’s Board of Trustees. Martha Woodmansee
Professor of English and Law
Ms. Woodmansee, who joined our faculty in 2003, has been a member of the Case English department since 1986. She has also taught at Harvard, Columbia, and Northwestern Universities. Since 1990 she has been Director of the Society for Critical Exchange, a national organization devoted to collaborative interdisciplinary work in theory. Ms. Woodmansee has published widely at the intersection of aesthetics, economics, and copyright law. She has articles in the Cardozo Arts & Entertainment Law Journal and the Houston Law Review. Her books include The Author, Art, and the Market (1994), a collection co-edited with Peter Jaszi, The Construction of Authorship: Textual Appropriation in Law and Literature (1994), and the collection, The New Economic Criticism: Studies at the Intersection of Literature and Economics (1999). A 2002 Guggenheim fellow and 2004 Fulbright fellow, her present research concerns book piracy and the emergence of international copyright during the nineteenth century.
Moot Courtroom (A59)
11075 East Blvd.
Cleveland, Ohio 44106
8:30 am – 9:00 am
9:00 am – 9:10 am
9:10 am – 9:30 am
Robert Clinton, Foundation Professor of Law, Faculty Fellow, Center for Law, Science & Innovation, Arizona State University Sandra Day O'Connor College of Law
Morning Panels - Theories and Justifications
9:30 am – 11:00 am
Panel 1 - Sovereignty and customary law
Moderator: Dalindyebo Shabalala - Visiting Assistant Professor, CWRU School of Law
Preston Hardison, Policy Analyst, Tulalip Tribes
Elizabeth Kronk Warner, Professor, Director, Tribal Law & Government Center, University of Kansas School of Law
Rebecca Tsosie, Professor of Law, Regents Professor of Law, University of Arizona James E. Rogers College of Law
Chidi Oguamanam, Professor, Faculty of Law, University of Ottawa
11:00 am – 11:30 am
Morning coffee break
11:30 am – 1:00 pm
Panel 2 - Utilitarianism, Cultural Rights and Moral Rights
Moderator: Guy Rub - Professor, OSU School of Law
J. Janewa Osei-Tutu, Associate Professor of Law, Affiliate Faculty, Center for Women's and Gender Studies, Florida International University School of Law
Kathy Bowrey, Professor, Faculty of Law, University of New South Wales, Australia
Dorothy Noyes, Professor, English and Comparative Studies, Ohio State University
Afternoon Panels - Interactions and Frictions
2:00 pm – 3:30 pm
Panel 3 - Patent subject matter (and designs)
Moderator: Martha Woodmansee – Professor of English and Law, CWRU
Margo Bagley, Professor, Emory University School of Law
Graham Dutfield, Professor of International Governance, Faculty of Law, University of Leeds, UK
3:30 pm – 3:45 pm
3:45 pm – 5:00 pm
Plenary of all Speakers – Where to from here? – A Research agenda
Moderator: Dalindyebo B. Shabalala, Visiting Assistant Professor, CWRU Law School
5:00 pm – 6:00 pm