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The Museum of Bioprospecting, Intellectual Property, and the Public Domain

A Place, A Process, A Philosophy

Wimbledon Publishing Company

LOOKING THE GORGON IN THE FACE

The Ubiquity of Propaganda and the Business of Debate

Joseph Henry Vogel Department of Economics University of Puerto Rico-Río Piedras

Albert Einstein believed imagination was more important than knowledge. Unfortunately, most museums do not nurture imagination despite mission statements to the contrary. They obsess with the transmission of knowledge which is the very lowest level of learning in Bloom's pyramid (Fig. I.1). This broadside is not to say that museums lack imagination; it is simply to say that even the best ones stop short of becoming part of the imaginative process. Once a visitor leaves the typical exhibition, there is no trace of his or her ever having entered it, guest books notwithstanding. Fortunately, the new information technologies can change all that. Data sets can be generated on the interaction of people with the exhibits and, more importantly, with one another.

The Introduction was inspired in part by an unsatisfying experience at the museum El Morro in Old San Juan, Puerto Rico. Let us now look at a satisfying experience which, nonetheless, also inspires us as to what we should not do. On 3 April 2007, Carlos Muñiz-Osorio, the research assistant for this anthology, and I went to Bunjilaka, The Aboriginal Centre at the Melbourne Museum in Australia. Then showing was the exhibition "Two Laws: Indigenous Knowledge, Law and Property." It begins in a sitting area below a triptych of three large plasma TVs. On the screens was an imaginary dialogue set at the turn of the twentieth century, between Sir Baldwin Spencer and Irrpmwe, aka "King Charley." Spencer was the director of the National Museum of Victoria and traveled to Alice Springs for what we would now term "access to genetic resources and associated knowledge." Irrpmwe was the leader of the Arrernte people from whom Spencer did not seek any sort of "prior informed consent." The actors playing the roles of Spencer and Irrpmwe were well cast and in period costumes. With great verisimilitude, the two men dispute inter alia" fair and equitable benefit sharing." Judging by the facial expressions of the audience that day, the display was a smashing success.

A handful of stragglers sitting on some upholstered benches without any back support. What type of statistical sample is that? (The interloper from the Introduction is back and even more obstreperous.)

Despite the quality of the video and the rapt audience, the display failed to become part of the imaginative process. It was fixed and afforded no possibility for feedback. This is the first unexpected lesson of what not to do. The impressions of Spencer versus Irrpmwe were left to float as, unfortunately, was the audio. The soundtrack penetrated the adjoining spaces and distracted visitors on the other side of the makeshift partition, reminding us of the paramount importance of architecture in the mission of any museum. This is the second lesson.

Leaving behind the visual portion of the Spencer-Irrpmwe dialog, we meandered through a series of photographs and artifacts, all artfully mounted. One that caught our eye was "Copyright and wrongs." What a cliché! The display quotes Banduk Marika who relates, "[Our ancestors] gave the people of each area their culture ... and all these people are interconnected by songlines. And if anywhere along that line one of these people's artwork is abused or misused, it doesn't just affect one family, it affects all people." The caption cites Banduk Marika & Others v Indofurn Pty, Ltd. [section]188,640 (1993) which presaged The Copyright Amendment (Moral Rights) Act 2000 that includes "The Right of Integrity of Authorship." The plaintiff objected that the story of his people, represented in Kangaroo and Shield People, had been misappropriated in the design of commercial carpets. With the subsequent "Right of Integrity," a similar infringement today could trigger additional remedies beyond those that had been sought (i.e. stepping or stomping on another's history can be reasonably interpreted as "derogatory"). Indisputably, the display facilitates the understanding of the abuses and misuses of indigenous intellectual property. But where are the higher levels of learning in Bloom's pyramid, viz., the application? the analysis? the synthesis? Unfortunately, the same can also be said of all the other displays in the "Two Laws" exhibition. This is the third and last lesson taken away from what went wrong in Bunjilaka.

MUBIO must scale Bloom's pyramid of learning. Combining insights from "Two Laws" with the "geopiracy" example mentioned in the Introduction may prove illuminating. Yes [sighing in exasperation] illuminate me. Protection over geographic indications is applied inconsistently across intellectual property and no where are the inconsistencies more glaring than at the movies. Through sui generis legislation, it would be easy enough to end "falsification of location" in the visual arts and achieve consistency with the "appellation of origins" realized in more mundane things like wine and cheese. Quite simply: any screenplay that attributes a specific location must be filmed in that location. Such an application can lead to analysis and synthesis with the themes explored from the "Two Laws" exhibition. For example, by the logic of the Moral Rights amendment, an ethical question arises: should sui generis legislation on faithful attribution in the visual arts sanction derogatory treatment of locations?

This is just too abstract. You're losing me.

To contemplate the proposition, visitors to MUBIO could screen an extreme case. At the time of this writing, exemplary would be Borat which supposedly opens and closes in Kazakhstan. Should sui generis legislation over attribution in location allow Kazakhstan to seek a remedy for being the butt of ridicule? The Russian Federal Agency for Culture and Cinematography seems to think it should. On 9 November 2006 Borat was banned because "... there are moments in the film which could offend some viewers' religious or national sensibilities." Climbing Bloom's pyramid, we can extend further the analogy and suggest the remedies of the Moral Rights amendment:

• an injunction imposed by the court;

• damages for loss resulting from the infringement;

• a declaration that a moral right has been infringed;

• an order for a public apology;

• an order that the false attribution or derogatory treatment be removed or reversed.

Get off your high horse! OK, Borat was smut but at least it was funny smut. Lighten up ...

The issues are complex and opinion will evolve with reflection. For example, it is hard to argue that Borat is not derogatory but it is also hard to argue that it is not satire. Indeed, it defines a new genre, cleverly called the "mockumentary." At MUBIO, synthesis will take place in discussion of the exemptions. Should satire be exempt from any future geographic indication requirement in the visual arts as it is from copyright protection? Naysayers should note well that the exemption protected Alice Randall's The Wind Be Gone, a parody of Gone with The Wind, from the legal onslaught of Margaret Mitchell's heirs. We return to the museum as a process. The exhibitions will not have the answers because the questions are normative in nature; the dialog is the vehicle to help us define the ethical tradeoffs. Hence one reaches to the very summit of Bloom's pyramid: evaluation of existing intellectual property law and suggestions for new sui generis legislation.

Just like you did in your first chapter, you're veering off track. What does defamation of Kazakasthan or however the hell you pronounce that ex-Soviet republic, have to do with bioprospecting?

In 1982, the evolutionist Richard Dawkins wrote The Extended Phenotype and argued that characteristics of the environment emanate from the genotype. The beauty of wooded mountains or semi-arid deserts are the benefits of extended phenotypes and, by the Convention on Biological Diversity (CBD), can be interpreted as deriving from a genetic resource. Key scenes of Borat were filmed in sylvan Romania, not the mostly semi-arid Kazakhstan. By dismissing the satire justification of false attribution of location, Russians will accuse the director of geopiracy which is wholly analogous to biopiracy. That's a stretch! You gotta be kiddin'. Try again. The pecuniary damage done can be seen in tourism, the number one industry worldwide. Tourists are often attracted to specific landscapes and can easily form misimpressions from visual media. So, falseness in attributing location easily leads to a misallocation of resources. For example, dendrophiles (people like me) might go to Kazakhstan and be disappointed while desert- lovers (Edward Abbey types) may not go thereby depriving Kazakhstan of tourist dollars. Although the economic harm suffered by the tourist and by the destination is commensurable in theory, the spiritual harm to the people of "country of origin" is incommensurable. As Jared Diamond, another illustrious evolutionist, wrote in The Third Chimpanzee, "[i]n the long run, and on a broad scale, where we live has contributed heavily to making us who we are." You like to drop names, don't you?

The importance of place in spirituality is intuitive. Adjoining the "Two Laws" exhibition in Bunjilaka is another called "Koori Voices" which highlights a quote from tribal elder Iris Lovett- Gardiner: "With Aboriginal people, and I believe all human beings, where they were born is the source of their being through their culture, spirituality, and customs ... Identity is shaped by the land and affirmed through ways of life."

Why beat around the bush? – ha, ha, ha, Australia, bush, get it? – If you want to talk about geopiracy, show a documentary like the ones I watch on The History Channel. Not smut like that Borat ! You just want to titillate.

With the notable exception of documentaries that achieve mass appeal, documentaries are banished from the Museum. Banished? Banished because they preach to the choir.

What a crock! I'll tell you why you don't show documentaries. I just happen to know a thing or two about intellectual property. That's why I'm here – hearing you out. You don't want documentaries because you'd have to pay for them! Under [section]110 of the US Copyright Law, commercial movies can be freely shown for educational purposes if, afterwards, you just sit around and shoot the breeze. Chuckling, with his hand half covering his mouth, he whispers: To tell the truth, I just read about [section]110 an hour ago in The New York Times, Arts & Leisure Section.

The cost-savings of exercising [section]110 is only, as they say in New Orleans, a lagniappe – a trifling freebie – in the decision to ban documentaries. Documentaries self-select those who are already engaged. In contrast, commercial movies can take the viewers where they do not necessarily want to go and, once there, engage them in argumentation and debate. By citing the plot, a scene, or a character, the facilitator will vet some carefully crafted proposition with respect to bioprospecting, intellectual property, and the public domain. For MUBIO, discussion begins in the amphitheatres and continues online and among friends and family who may have seen the same movie but never heard of the museum or, for logistical reasons, cannot visit. "The important thing" as Einstein also famously said, "is not to stop questioning."

We hasten to add that questioning is seldom welcome. Big bucks are at stake in sui generis legislation and reflexes have been trained not to think but to act and react to pat slogans and neologisms. "Diga NO a Piratería" (Say NO to Piracy!) "Biopiracy," "Just ask your doctor," "Terminator Technology," "America's Heartland" ...

Methinketh you protesteth too much! What about your own neologism "geopiracy?"

Propaganda is the Gorgon that we must look in the face. Let us reiterate the reason for discussion in the amphitheatres after the movies. Discussion is not to qualify for exemption of movie licenses under [section]110. It is because "Propaganda ceases where simple dialog begins" – as Jacques Ellul elaborated so beautifully in his seminal treatise Propagandes (7). Parenthetically, under the four factor balancing test of the US Copyright Law (US Code Title 17, section 107), the "fair use" of screening the movies will also extend to extracting photographic images for the wiki posters that will line the back walls of each amphitheatre (see Fig. I.3.). The lagniappe is redoubled!

In fleshing out our proposal to construct the museum, it is useful not only to quote eminent scholars but also to quote quotes about those scholars.

Whoosh! Run that by me again.

For example, Einstein is said to have been a "giant standing on the shoulders of giants" and the trope has huge implications for MUBIO. Construction requires a multi-million dollar gift which will be a gigantic act of philanthropy standing on the shoulders of other gigantic acts of philanthropy. I refer specifically to philanthropic traditions directed toward self-improvement of the average man, woman, and child. For our purposes, none is more appropriate than that of Andrew Carnegie, the nineteenth century industrialist who believed "[o]nly in popular education can man erect the structure of an enduring civilization." Long before Benjamin Bloom was born and conceived his pyramid (or long before Benjy was conceived and bore one of his pyramids, ha, ha, ha), Carnegie realized that one cannot scale the higher levels of learning without first accessing knowledge. His vision was an expansive network of libraries "Free to the People." Some 3,500 were constructed between 1883 and 1929 throughout the United States as well as in Australia, Ireland, Britain, New Zealand, and the Caribbean (including Puerto Rico).

The mission of the libraries was reflected in their architecture and architecture begins with the choice of size. Here again, Carnegie is instructive. Rather than erecting a Pharaonic structure – typical of the inflated egos of his contemporaries – Carnegie spread the money around, allowing architectural innovation and adaptation at the local level. Although diverse, almost all of the libraries would share a few design elements of Carnegie's philosophy: a central staircase to symbolize elevation, a prominent entrance, passage, and a lamppost, enlightenment. Similarly, MUBIO must also be small in size and allow innovation and adaptation at the local level.

Museums plural – now we're dreamin' big. Not just a museum but a chain of museums. Sort of like Burger King or Taco Bell?

What works architecturally in San Juan, Puerto Rico will obviously not work in Juneau, Alaska where, coincidentally, no Carnegie Library was ever established. Rather than common symbols adorning the structure (scratch the staircase? the prominent entrance? the lamppost?), common functions should be incorporated into the structure. Just as the open stacks were common to all Carnegie libraries, the agora and amphitheatres should be common to all of the museums. Similarly, each museum building should demonstrate how conservation can be achieved through the use of local building materials, passive heating and cooling, the self-generation of energy and water, and the recycling of wastes.

Back up. You said your museums must be small in size. Why? It sounds inefficient to me. Why not capture economies of scale?

Many of the original Carnegie Library buildings were indeed pulled down or put to different uses because they were deemed too small for the contemporary stock and flow of information. Nevertheless, it was their small size that endeared them to the public. The scale of the proposed museums must work on Bloom's affective motor. The amphitheatres must be designed to allow each person to speak unfettered and listen undistracted to the other attendants. Small is not only beautiful, it is human. Humans did not evolve for the typical amphitheatre built today. When someone poses a question to a speaker in an auditorium which seats 200, good luck just hearing them. Inverting Ellul's wisdom, we can affirm that "propaganda begins where dialog ceases."

Before "banishing" now "affirming." How 'bout some simple words? For instance, just how "big" is your "small?"

The three amphitheatres of the Museum should each accommodate 20 people which means that the agora should accommodate sixty people, in order that it can also be used for plenary sessions.

And just how much are these boutique museums going to cost the poor schnook – no, no, no, I take that back – the rich schnook who falls for it?

Again Carnegie is instructive. Fearful that his donations would be misappropriated, he ordered four words to be chiseled in stone, above the doorways, "Free to the Public."

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Excerpted from The Museum of Bioprospecting, Intellectual Property, and the Public Domain by Joseph Henry Vogel, Carlos A. Muñiz-Osorio. Copyright © 2010 Joseph Henry Vogel. Excerpted by permission of Wimbledon Publishing Company.
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