Polyrhythmic Patents

Forget those song-swapping teenagers targeted by music industry
lawsuits. Critics of the restrictive, heavy-handed approach to
intellectual property (IP) favored by large corporations now have a
new champion: Brazil.

Yes, the country. From music to medicine, software to
agriculture, the world’s fifth-largest nation has become a
laboratory for policies that seek to expand the information
commons, charting a legal course that is driving copyright and
patent holders to distraction and raising new questions about the
rights of poor countries to determine their own path toward

‘A world opened up by communications cannot remain closed up in
a feudal vision of property,’ says Brazil’s minister of culture,
Gilberto Gil, in Wired (Nov. 2004). In addition to
his government job, Gil is one of Brazil’s biggest pop stars. He
has made a fortune from his own music copyrights, yet he rails
against the ‘fundamentalists of absolute property control’ — the
corporations and governments that, left unchecked, would lock up
all information, from literature to DNA, and require users to pay
royalties for every scrap.

Last year Gil threw his government’s support behind the Creative
Commons licensing system, a more flexible form of copyright
designed by Stanford law professor Lawrence Lessig. These ‘some
rights reserved’ licenses allow artists to specify allowable free
uses, such as digital sampling and noncommercial file sharing, for
their work. Putting his own money where his mouth is, Gil also
offered to re-release several of his old hit songs under the
license, free for anyone to download, sample, and reuse to their
liking. That idea hit a snag when Warner Music of Brazil, which
co-owns Gil’s copyrights, balked at the notion of letting him give
away his music.

On another contentious front in the IP wars — software —
Brazil has thumbed its nose at Microsoft and other giants. ‘The
prime directive of the federal Institute for Information Technology
is to promote the adoption of free software throughout the
government and ultimately the nation,’ writes Wired‘s
Julian Dibbell. ‘Ministries and schools are migrating their offices
to open-source systems. And within the government’s ‘digital
inclusion’ programs — aimed at bringing computer access to the 80
percent of Brazilians who have none — GNU/Linux is the rule.’

In August 2003, former president (now senator) Jos? Sarney
sponsored a teach-in on free software at the Brazilian National
Congress, attended by 161 of the country’s 594 congress members,
that featured a keynote address by the father of free software,
Richard Stallman. And the country now boasts a burgeoning community
of open-source software developers that rivals those in the United
States and India. Medical patents, especially on life-saving AIDS
drugs, have pitted Brazil, South Africa, and several other nations
ravaged by the disease against pharmaceutical manufacturers like
Merck and AstraZeneca. Poor countries insist on the right to favor
patients over patents in cases of public health emergencies by
producing and distributing to their citizens cheap generic copies
of patent medicines. This issue helped propel President Luiz In?cio
Lula da Silva to his landslide victory in the 2001 elections.
Lula’s Workers Party had pioneered a successful program that gave
away a free cocktail of AIDS drugs to HIV sufferers in several
cities governed by the party.

Brazil’s public-minded approach to IP has been likened to
tropicalismo, a 1960s musical movement founded by Gil and
his longtime collaborator Caetano Veloso that cut and pasted
traditional Brazilian bossa nova with a hodgepodge of outside
influences. It was, Gil tells Wired, ‘no longer a mere
submission to the forces of economic imperialism, but a
cannibalistic response of swallowing what they gave us, processing
it, and making it something new and different. We saw the
cultivating of new habits and manners from the outside as a way of
nourishing ourselves, not just intoxicating ourselves.’ The
resulting sonic pastiche was considered revolutionary at the time,
not just by fans but also by Brazil’s right-wing military junta —
who threw Veloso and Gil in jail, then into exile in London.

Since 1970 the World Intellectual Property Organization (WIPO)
has governed international IP standards. At first the WIPO
framework did not force member countries to change their national
laws, allowing them to choose for themselves the level of IP
protection appropriate for their level of development. But since
1995, trade negotiators from the United States, the European Union,
and Japan (where most copyrights, patents, and trademarks are
registered) have been bullying the world’s poor countries to adopt
stronger controls on intellectual property — the same level of
protection as in the rich countries. ‘It is not in the interests of
poor countries . . . to adopt or recognize restrictive IP regimes,
as these would deprive them of access to knowledge and involve
heavy financial drain in the payment of royalties,’ argue the
editors of Third World Resurgence (Nov./Dec.
2004). ‘At minimum, they must have the freedom to tailor their IP
laws to meet their developmental needs.’ Contention over IP issues
was one of the key reasons for the collapse of the World Trade
Organization talks in Seattle in 1999 and in Canc?n in 2003.

At a WIPO meeting last October in Geneva, Brazil led a coalition
of poor countries in saying no to the rich countries’
‘high-protectionist agenda’ for IP, proposing instead that the
organization establish a ‘development agenda’ that is sensitive to
the needs of its members. Despite opposition from the United
States, the member states accepted the proposal and will soon begin
negotiations on a development agenda, a move Brazil calls a ‘small
but positive step for WIPO.’

Ultimately, says tropicalista Gilberto Gil, ideas and
information want to be free. ‘No country, not the United States,
not Europe, can stand in the way of it,’ he says. ‘It’s a global
trend. It’s part of the very process of civilization. It’s the
semantic abundance of the modern world, of the postmodern world —
and there’s no use resisting it.’

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