Proposal for a new form of Intellectual Property: the CultureMark

Intellectual property is one of the most important institutional developments of the modern age. The protection of trademarks, patents, and copyrights has generated more wealth and economic growth than any human innovation other than the domestication of plants and animals, thousands of years ago. It has financed more than 90% of all literature and visual arts; all communication technology from the telegraph onward; all non-military electronic technology; and most medical technology.

However, intellectual property (IP) can be abused, such as pharmaceutical corporations attempting to block production of HIV therapies in Brazil, and their current suppression of unlimited production of COVID-19 vaccines. Furthermore, IP can be mis-designed. Disney lobbied Congress to extend copyright-protections indefinitely so that early creative works like Snow White (1935) do not go into the public domain. Their concern is that the face of Snow White could be used in ways that damage their family-friendly corporate reputation. But if brand-protection is the issue, the remedy is rather self-evident: the graphic design of Disney characters could be protected by trademark—which is indefinite—because they are linked with the Disney brand. Copyright-protection has a different purpose, and should revert to the 7-years-plus-7-renewable-once policy. This would also help rappers and other samplers of earlier music to know that they can build on the creative work of earlier artists.

But perhaps the greatest mis-design is that we have not yet incorporated cultural protections into our intellectual property rights. If a Native American group has a specific name, a specific aesthetic, and a specific reputation, we know those are valuable because companies have used those names and designs to promote products which they profit from. This includes Jeep using the name Cherokee for one of its vehicles, and it includes Zuni restaurant in San Francisco, using the name of a pueblo community with their appealing desert-southwest aesthetic.

Part of the problem is that IP is designed to be assigned to individuals. This has caused many problems in patent law, because complex technologies are usually developed by teams. Assignation of a patent to one member of that team is usually more a reflection of power-inequalities within a corporation, and not an accurate reflection of creative contributions. Likewise, IP protection of the words “Cherokee” and “Zuni” would have to be assigned to communities, not individuals. However in the latter case, the solution may be more straightforward: assign the rights to the recognized governing body of the community. The design of the type of IP is also important: since it is related to the reputation of the community, it should be modeled on the permanent form of protection: trade-mark. I suggest that it be called a CultureMark. Some communities would want to license-out their name or other unique creative works, in exchange for license revenue; their choice. The ability to license would be both a source of revenue and political leverage. Like trademark, it should be perpetual. Unlike trademark, perhaps CultureMark should be inalienable so that a wealthy buyer cannot repeat the crimes we have already committed by stripping a community of the right to declare its identity, again. I would feel far more comfortable eating at Zuni restaurant, if I knew that they had negotiated terms with the Zuni government and were providing revenue to that community on the terms that the community had specified.

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