Written on 26-Apr-2012 by Fidel A. Captain
Many small island states lose their best minds and their greatest talent to developed nations in Europe and North America. In addition, they fail to protect their current and traditional creations, techniques, and knowledge as intellectual property, and in so doing lose their economic value. Unless this trend is quickly checked, small island states will lose their competitive edge and important aspects of their culture in an era driven by knowledge.
To this end, this paper seeks to show how intellectual property can be used, and has been used to preserve the culture of the people of small island states, and to raise the awareness of the value of their intellectual property. This will be done by looking at one case in detail where intellectual property law was used to protect a national cultural icon: Pussers’ protection of the Painkiller cocktail. Other similar cases where intellectual property can or has been used to protect and preserve cultural icons, traditional creations, and techniques will also be looked at.
In conclusion, intellectual property can be used, and has been used to protect the current and traditional creations, techniques, and culture of small island states. In this research it was found that there are cases where culture can be, and has been preserved through intellectual property protection, and that there exists many more opportunities for the preservation of such.
What is culture?
There are many definitions of culture that range from the biological to the anthropological. However, within the context of this essay, culture refers to the collective ideas, knowledge, traditions, values, beliefs and ways of doing things of a particular group of people that distinguishes that group from another group (Dictionary.com 2012). Culture is what gives this group of people an identity, and is peculiar to that group. It is what binds this group together, while making it different from another group. Further, culture is transmitted from one generation to another within this group of people, and is not necessarily passed on genetically (Parson 1949).
Some anthropologists stress that culture has both a tangible and an intangible aspect, being not only the artifacts, symbols, tools and creations of a group of people, but also the way these things are interpreted and used. Artifacts, tools, symbols and creations may be shared across cultures, but how these are interpreted, perceived and used are the same within one culture (Banks 1989). It is the interpretation of these things that gives a people their identity and defines their culture.
American anthropologists Alfred Kroeber and Clyde Kluckhorn in their publication Culture: A critical review of concepts and definitions (1952), give an excellent definition of culture:
"Culture consists of patterns, explicit and implicit, of and for behavior acquired and transmitted by symbols, constituting the distinctive achievements of human groups, including their embodiments in artifacts; the essential core of culture consists of traditional (i.e. historically derived and selected) ideas and especially their attached values"
John Bodley in Cultural Anthropology: Tribes, States, and the Global System (1994) summarizes that culture consists of what people think, what they do, and the material products they produce (Jervis 2006). In essence, there is a knowledge aspect to culture – our knowledge, a doing aspect to culture – our way, and a material aspect to culture – our creations. The knowledge of what to do, knowing how to do it your way, and creating things from this knowledge in your peculiar way forms the very essence of what is today known as intellectual property.
What are Intellectual Property and Intellectual Property Rights?
When knowledge is put to use constructively and creatively, it becomes intellectual property, a valuable asset. Intellectual property refers to creations of the mind: inventions, literary and artistic works, symbols, names, images, and designs used in commerce; and intellectual property rights (IPR) are the rights that have been awarded, by law, to the creators of intellectual work (WIPO, n.d.). The sole purpose of intellectual property and IPR is to protect the creation by giving full rights to the creator.
Intellectual property is divided into two main categories: industrial property and copyright. Industrial property covers, among other things, patents, trademarks, trade secrets, and geographic indicators of source. Copyright, on the other hand, covers literary and artistic works, which include, but is not limited to, photographs, books, music, plays, film, performing artists and their performances, and computer programs (the source code). There is also a new and emerging category of intellectual property called Sui Generis systems. The word Sui Generis is Latin, meaning of its own kind, and literally means unique. This type of intellectual property covers areas such as database protection and integrated circuit design (WIPO, n.d.).
Patents are granted to inventors for their creations, and prevent unauthorized use of their inventions by granting exclusive rights to the inventor (creator) preventing others from using their inventions commercially, for a fixed period of time, without their prior consent.
A trademark is a mark (letter, shape, symbol, or name) that is used to identify a company or its product; and geographic indicators of source are marks (names or symbols) that are used to identify the geographic origin of a product.
Industrial designs are used to protect the aesthetic aspects of an object (shape, texture, pattern, or color), rather than the technical features, whereas trade secrets are used to protect commercially valuable information about production methods, business plans, clientele, etc.
Copyright protects the way in which literary and artistic work is expressed, and not the idea that the literary or artistic work is trying to convey. It protects the expression of the idea and not the idea itself. Its purpose is to protect the creators of literary and artistic work from having their work reproduced, recorded, performed publicly, broadcasted, translated, or adapted, without their prior consent. There are also rights related to copyright that protect performing artists, producers, and broadcasting organizations.
Many of the intellectual property laws and treaties today exist to protect the creator of new and innovative creations, allowing them to profit financially from their creations if they so desire. While a people may not wish to profit from their creations, these mechanisms prevent others from duplicating their creations without their permission and profiting financially from it.
How intellectual property has been used to protect and preserve culture
The fact that a people’s culture is peculiar to them and gives them an identity, and the fact that intellectual property protects the creators of innovative creations, leads one to believe that intellectual property can, and should, be used to protect and preserve culture.
On April 12, 2011 Pusser’s Rum filed a lawsuit in U.S. District court against the owners of a tiki bar called Painkiller, which is on the Lower East Side of New York, alleging that their use of the name Painkiller in their bar and some of the cocktails they sold was causing irreparable harm to its brand, Pusser’s Painkiller® (Bolt 2011). Pusser’s won the case because they owned the Painkiller trademark in the United States, and the tiki bar had violated their intellectual property rights.
The Painkiller is part of Virgin Islands history, and arguable part of Virgin Islands culture. The name originates from a cocktail invented in 1971 by the then owners of the Soggy Dollar bar on Jost Van Dyke, George and Mari Myrick (Bolt 2011). Charles Tobias came along in the 1980s and was a regular at the bar and loved the Painkiller, but the new owner, Daphne Henderson, refused to give him the formula. Through perseverance he came up with his own formula, which he thought was better, and challenged Daphne to a taste test, which he won (Pusser’s West Indies n.d.).
Charles then sought, and got, permission from Daphne to trademark the Painkiller name in the United States and around the world, now Pusser’s Painkiller® because he made it with Pusser’s Rum. Though you can still buy the Painkiller in the Soggy Dollar bar in Jost Van Dyke, Pusser’s owns the Pusser’s Painkiller® trademark.
Dark ‘n Stormy®
On 27th February, 2012, Gosling’s Rum website, in a press release, declared that Gosling’s Dark ‘n Stormy® cocktail will be available in 8.4oz cans (Goslings Rum 2012):
"The national drink of Bermuda is arriving on American shores ready to drink, in a stylish new 8.4 oz./250 ml can. A deliciously refreshing blend of Gosling’s Black Seal Rum and Gosling’s Stormy Ginger Beer, this is the authentic Dark ‘n Stormy cocktail created to be enjoyed directly out of the can."
In some quarters, the Dark ‘n Stormy cocktail is considered the national drink of Bermuda. In fact, before the 8.4oz canned version was released, the company claimed it was released to the ‘most demanding Dark ‘n Stormy connoisseurs in the world – Bermudians’, and won their approval. However, the Dark ‘n Stormy trademark is owned by the Gosling’s. In fact, they own two trademarks for the cocktail, which specify that the main ingredient of the cocktail must be their Black Seal Rum (Miles 2009).
Gosling’s Rum has a history that goes back to 1806 when James Gosling opened their first shop in Bermuda. In 1860 they distilled the first distinctive Bermuda black rum, which would later be called Black Seal Rum. Today, Black Seal Rum is a part of Bermudian culture and heritage, and is an essential ingredient in the trademarked Dark ‘n Stormy® cocktail, among other local dishes and cocktails (Goslings Rum n.d.).
Trademarks and culture
Marks and symbols form an integral part of any culture, and anthropologists have found that though different cultures may use the same or similar marks or symbols, the interpretation of such marks across cultures can be vastly different. Trademarks help to ensure that a mark or symbol is not misused, misrepresented, or misinterpreted, and that the meaning associated with the mark or symbol, cultural or otherwise, is the same regardless of where the mark or symbol is used.
The Paris Convention for the Protection of Industrial property of 1883 and the Madrid Agreement Concerning the International Registration of Marks of 1891 are the two earliest agreements that catered to using a mark or symbol to represent a product and confirm its source. What this did was remove the disparate cultural interpretations of similar marks and created one interpretation of a mark, which was based on the source of the mark, the source culture of the mark, or however the person registering the mark intended for it to be interpreted. It also prevented others from copying the mark and using it to misrepresent the source and quality of goods or services bearing that mark.
The Painkiller and Dark ‘n Stormy cocktails are considered national cultural icons of their respective territories by their respective peoples, the Virgin Islanders and Bermudians. By having these names trademarked it ensures that the meanings, connotations, and interpretations associated with these cocktails are the same regardless of where they are used – cocktails made with the same specific ingredients mixed in the same specific way. In essence, it preserves that aspect of Virgin Islands and Bermudian culture by preventing anyone from making similar cocktails and calling them by these names unless they have specific ingredients mixed in a specific way.
The trademarks for the Painkiller and Dark ‘n Stormy cocktails are not collectively owned by the people of these territories, but by residents of these territories, Mr. Tobias and the Gosling’s respectively. Therefore, legally there is nothing to stop the owners from taking their names with them if they decide to leave these territories, though it would be morally questionable if they did so. Further, legally there is nothing to stop them from modifying the mark and makeup of the cocktails if they choose to do so, because they own the trademarks. This raises a very important question, should an individual or company own the trademark of a cultural icon of a people? Or should the people own the trademark of their cultural icon?
With current international laws and treaties, an individual or company can own the trademark of a cultural icon of a people and use it whenever, wherever, and however he, she, or they see fit. Nevertheless, strides are being taken to correct this seemingly moral inequity. The World Intellectual Property Organization (WIPO) through its Creative Heritage Project is “developing resources for the strategic management of intellectual property rights and interests by cultural institutions, so as to both preserve and protect cultural heritage” (Vézina 2010).
For now, the owners of the trademarks of Pusser’s Painkiller and the Dark ‘n Stormy cocktail can be viewed as caretakers of their respective communities’ cultural icons.
How intellectual property can be used to protect and preserve culture
The preceding examples show how trademarks have been used to protect certain aspects of a people’s culture. Other examples include the use of trademarks and geographic indicators of source to protect the food and spices of cultures around the world, such as Jamaican jerk seasoning and Grenadian spices.
Copyright also plays an important role in protecting culture because it protects literary and artistic work, such as music, poetry, and art. The nature of these aspects lends itself to protection using copyright because in most cases once the source country is party to the Berne Convention, and protection is automatic and intrinsic from the time the work is created. Copyright plays a very important and vital role in the preservation and promotion of Jamaican culture by protecting music artists, playwrights, poets, and writers.
Industrial designs play an important role in protecting cultural designs such as crafts and textiles that are commercially produced but have a strong cultural component. This type of intellectually property protection has been used in Australia by the Aborigines to protect some aspects of their culture that were being reproduced commercially without permission and unlawfully (Janke 2003).
Intellectual property rights protect the rights of creators, and allow them to profit financially from their creation if they so desire. However, there are limitations and these have to do with time, ownership and enforcement.
Current intellectual property conventions and treaties recommend protecting intellectual property for a specified period of time. The recommended time period of the protection varies according to the type of intellectually property being protected, and according to the implementation of the treaty by individual states.
The Paris Convention for the protection of Industrial Property (1883) says that registrations made “cannot be cancelled until after a reasonable period, and only if the owner cannot justify his inaction” and the Trademark Law Treaty (1994) “standardized the duration of the initial period of the registration and the duration of each renewal to 10 years each” (WIPO n.d.).
The Berne convention recommends protecting authors for their lifetime plus an additional 50 years, for most types of work (WIPO n.d.). However, in the United States protection is granted for the lifetime of the author plus 70 years, for most types of work (U.S. Copyright Office 2010).
The time limitation on intellectual property protection can be a hindrance to cultural preservation because in some cases it forces the owner to renew the rights to their creation, and if the owner cannot or does not renew those rights that cultural work can end up in the public domain. In some cases, such as copyright, if the owner of an important piece of cultural work dies, after a certain time that work will fall into the public domain and can be ultimately lost or lose its cultural value after being copied and diluted.
When a trademark, or any other mark, is registered the individual, group, or organization registering the mark owns it. Only the registrant has the right to use the mark or authorize the use of that mark. The same is true for industrial designs.
With copyright, the author of the work is the owner of the work from the time the work is created once the country that the work was created in is party to the Berne Convention. Only the author has the right to authorize anyone to reproduce his/her work.
Ownership of intellectual property poses the biggest threat to cultural preservation through intellectual property protection. This is because in many cultures it is difficult to ascertain and maintain the ownership of cultural icons, such as folk songs, traditional techniques for doing things, and traditional and sacred marks.
As with every law, enforcement is the most difficult aspect of the law. Even though many states may have assented to international treaties on intellectual property, they may not have enacted legislation to implement the treaty, and put measures in place to enforce that legislation. Nations are sovereign, governed by their own laws, and regardless of what treaties they sign, violators of intellectual property rights can only be prosecuted according to the laws of the land in which they are being violated, and if no such laws exist or if enforcement of the laws is poor, there is no remedy for the intellectual property holder.
The future – Traditional Knowledge and Traditional Cultural Expressions
While current intellectual property laws and treaties provide a mechanism for protecting some aspects of culture, they cannot provide complete coverage for all, or even most, aspects of culture. Most important of these are what have been recently classified by the WIPO as traditional knowledge (TK) and traditional cultural expressions (TCEs).
Traditional knowledge is described as “traditional technical know how, or traditional ecological, scientific or medical knowledge… and can encompass innovations, information, practices, skills, and traditional agriculture” (WIPO n.d.). This is closely related to traditional cultural expressions or ‘expressions of folklore’, which are described as “productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community or by individuals reflecting the traditional artistic expectations of such a community, in particular folk tales, folk songs, folk dances, folk art, crafts, and architectural forms” (WIPO n.d.).
The Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was established in 2000 with a view to addressing the linkages between the IP system and concerns of practitioners and custodians of traditional cultures (WIPO n.d.). At the Assemblies of Member States of WIPO held between September 26 and October 5, 2011, a decision was made to renew the mandate of the IGC for the 2012-2013 biennium. This mandate requires that the committee “expedite its work on text-based negotiations with the objective of reaching agreement on a text(s) of an international legal instrument(s) which will ensure the effective protection of GRs, TK and TCEs” (WIPO n.d.).
The IGC has done a lot of work over the last twelve years conducting surveys, publishing papers and booklets, and educating indigenous peoples of their intellectual property rights. It is hoped that in the next five years the IGC establishes a treaty or convention that specifically protects ‘culture’ – genetic resources, traditional knowledge and folklore.
Culture, being the collective ideas, knowledge, traditions, and ways of doing things of a particular group of people, is intellectual property, and some aspects of it can be protected using current IP laws and treaties. Trademarks and copyrights have been used extensively to preserve some cultural icons, but individuals or companies, which may not be tied to that culture and may not have a vested interest in preserving that culture, own these intellectual property. This seemingly moral inequity is being addressed by the WIPO through its IGC who are trying to establish a treaty that will protect genetic resources, traditional knowledge and folklore, and help to resolve the issues of ownership and time restrictions on ownership. Until then, current treaties and conventions will have to be used to preserve those aspects of culture that it can.
Banks, J. and McGee Banks, C. (1989) Multicultural Education. Needham Heights, MA: Allyn and Bacon.
Bodley, J. (1994) Cultural Anthropology: Tribes, States and the Global System.
Bolt, T. (2012) Pusser's VI Rum Wins Trademark Battle on "Painkiller". Virgin Islands Law Blog, [blog] 13 Jun 2011, Available at: http://lawblog.vilaw.com/2011/06/articles/litigation/pussers-vi-rum-wins-trademark-battle-on-painkiller/ [Accessed: 8 Apr 2012].
CARLA (2009) What is Culture?. [online] Available at: http://www.carla.umn.edu/culture/definitions.html [Accessed: 2012-04-07].
Dictionary.com (2012) The American Heritage New Dictionary of Cultural Literacy, Third Edition. [online] Available at: http://dictionary.reference.com/browse/culture [Accessed: 8 Apr 2012].
Gosling's Rum (2012) Gosling's Dark 'n Stormy cocktail sets sail in new 8.4 Oz. cans. [online] Available at: http://goslingsrum.com/whatsnew_article.asp?ArticleID=274 [Accessed: 9 Apr 2012].
Gosling's Rum (n.d.) Our History. [online] Available at: http://www.goslingsrum.com/discover_ourhistory.asp [Accessed: 10 Apr 2012].
Grier, J. (2011) Rum and trademarks. Liquidity Preference, [blog] 9 Jun 2011, Available at: http://www.jacobgrier.com/blog/archives/4703.html [Accessed: 8 Apr 2012].
Grier, J. (2012) Dark 'n Sue Me. Liquidity Preference, [blog] 4 Aug 2009, Available at: http://www.jacobgrier.com/blog/archives/2552.html [Accessed: 7 Apr 2012].
Janke, T. (2003) Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expression. WIPO Publications, p.71 - 81.
Jervis, N. (2006) What is Culture. [online] Available at: http://emsc32.nysed.gov/ciai/socst/grade3/whatisa.html [Accessed: 7 Apr 2012].
Kroeber, A. and Kluckhohn, C. (1952) Culture: A critical review of concepts and definitions. Harvard University Peabody Museum of American Archeology and Ethnology Papers, p.47.
Miles, J. (2009) The Right Stuff (by Law). New York Times, [online] 5 July. Available at: http://www.nytimes.com/2009/07/05/fashion/05shaken.html?_r=1 [Accessed: 9 Apr 2012].
Parson, T. (1949) Essays in Sociological Theory. Glencoe, IL:.
Pusser's West Indies (n.d.) Response from Charles Tobias. [online] Available at: http://www.pussers.com/cst.htm [Accessed: 9 Apr 2012].
Pusser's West Indies (n.d.) Origin of the Pusser's Painkiller. [online] Available at: http://pussers.com/t-pussers-painkiller.aspx [Accessed: 9 Apr 2012].
SeriousEats.com (2011) Pusser's Rum Discovers the Cost of Trademarking Drink Recipes. [online] Available at: http://drinks.seriouseats.com/2011/06/pussers-rum-painkiller-trademark-lawsuit-downside-pr-disaster.html [Accessed: 9 Apr 2012].
The Lo-Down (2011) Lawsuit Costs Painkiller its Name and Website. [online] Available at: http://www.thelodownny.com/leslog/2011/06/lawsuit-costs-painkiller-its-name-and-website-health-dept-inspection-turns-up-trouble.html [Accessed: 9 Apr 2012].
U.S. Copyright Office (2010) How Long Does Copyright Protection Last?. [online] Available at: http://www.copyright.gov/help/faq/faq-duration.html [Accessed: 10 Apr 2012].
USPTO (1989) Maintain/Renew a Registration: How to Keep a Registration Alive. [online] Available at: http://www.uspto.gov/trademarks/process/maintain/prfaq.jsp [Accessed: 23 Apr 2012].
VÈzina, B. (2010) Traditional Cultures, Indigenous Peoples and Cultural Institutions. WIPO Magazine, [online] Apr 2010. Available at: http://www.wipo.int/wipo_magazine/en/2010/02/article_0009.html [Accessed: 9 Apr 2012].
WIPO (2012) WIPO-Administered Treaties. [online] Available at: http://www.wipo.int/treaties/en/ [Accessed: 8 Apr 2012].
WIPO (2012) Summary Table of Membership of the World Intellectual Property Organization (WIPO) and the Treaties Administered by WIPO, plus UPOV, WTO and UN. [online] Available at: http://www.wipo.int/treaties/en/summary.jsp [Accessed: 9 Apr 2012].
WIPO (n.d.) What is Intellectual Property?. [online] Available at: http://www.wipo.int/about-ip/en/index.html [Accessed: 9 Apr 2012].
WIPO (n.d.) Intellectual Property and Traditional Cultural Expressions/folklore. Geneva: WIPO.
WIPO (n.d.) Intellectual Property and Traditional Knowledge. Geneva: WIPO.
WIPO (2000) Intergovernmental Committee on Intellectual Property and Genetic Resources. [online] Available at: http://wipo.int/tk/en/igc/ [Accessed: 25 Apr 2012].
WIPO (n.d.) Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886). [online] Available at: http://www.wipo.int/treaties/en/ip/berne/summary_berne.html [Accessed: 10 Apr 2012].
World Communites (2006) What is Culture?. [online] Available at: http://emsc32.nysed.gov/ciai/socst/grade3/whatisa.html [Accessed: 2012-04-07].