Saturday, March 22, 2008

How to profit without risking infringement: appropriate creations unprotected by our intellectual property laws

More from the Manual, the KLF's how-to book on making a number one pop hit. Here they note that the first component part of the song is its "groove," and that "Black American records" are always a reliable source for effective ones. Oh, and they point out that the grooves on those records aren't even considered part of the copyrighted music:

The first of the component parts you are going to need to find is the irresistible dance floor groove.

Before we go any further we had better define "groove". It is basically the drum and bass patterns and all the other musical sounds on the record that are neither hummable or singalongable to. . . .

Black American records have always been the most reliable source of dance groove. These records down through the years have inevitably laid so much emphasis on the altar of groove and so very little into fulfilling the other Golden Rules that they very rarely break through into the U.K. Top Ten, let alone making the Number One spot. A by-product of this situation is that gangsters of the groove from Bo Diddley on down believe they have been ripped off, not only by the business but by all the artists that have followed on from them. This is because the copyright laws that have grown over the past one hundred years have all been developed by whites of European descent and these laws state that fifty per cent of the copyright of any song should be for the lyrics, the other fifty per cent for the top line (sung) melody; groove doesn't even get a look in. If the copyright laws had been in the hands of blacks of African descent, at least eighty per cent would have gone to the creators of the groove, the remainder split between the lyrics and the melody. If perchance you are reading this and you are both black and a lawyer, make a name for yourself. Right the wrongs.

The KLF aren't the only ones who have detected racial and cultural bias in Western intellectual property laws. As the Authorship Collective in the English Department right here at Case Western Reserve explains (footnotes omitted):
With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions -- the recovery of marginalized creators and underappreciated forms of creative production -- has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center -- indeed, the linchpin -- of Anglo-American copyright as well as of European "authors' rights" is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the "transformative" moment in the creative process.
The Authorship Collective goes on to cite examples of "biopiracy," the appropriation by pharmaceutical companies of native knowledge in medicinal plants. The companies then patent synthetic versions of the plants' effective ingredients and profit from the sale of the "new" drug. For example:
The Hoodia cactus, native to South Africa, has recently come to the fore of the debate surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes of the region (in the past they were commonly referred to as "Bushmen", although now this designation is recognized as being pejorative, inaccurate and outdated). The San peoples have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions in the desert. Scientists from the South African Council for Scientific and Industrial Affairs learned of the Hoodia's properties and began to study the cactus. In scientific tests, animals given the cactus lost weight rapidly without any apparent negative side effects. According to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the Hoodia works by "mimicking the effect glucose has on the nerve cells in the brain, in effect telling us we're full…thus curbing the appetite." ( Scientists at the CSIR dubbed the appetite suppressant molecule in the Hoodia "P57". Recognizing the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however, the San peoples were completely unaware of what was occurring.

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