Pox

'The Scope and Limits of Legal Intervention in Controversies Involving Biomedicine: A Legal History of Vaccination and English Law (1813–1853)' by Ubaka Ogbogu offers a concise account of the role of law and politics in the adoption of smallpox vaccination in Britain in the early Victorian period, when legislation was passed to enforce compulsory infantile vaccination.

Ogbogu states that -

The primary thesis of the study is that law, and the processes through which it is created and maintained, provide a distinct “envelope of social order” (Jasanoff 2008, 764) within which competing and duelling interests and opinions about scientific innovation find origin, expression, and debate. Consequently, the manner in which law responds to science and its impact on society is neither static nor self-evident, but subject to mutable circumstances that are historically, politically, and socially situated. The paper is divided into two main parts. The first provides a brief history of vaccination and the second focuses on events surrounding the introduction of compulsory vaccination laws in England and Wales.

He concludes that -

The history of vaccination policy and practice in England in the first half of the 19th century reveals that law played a central role in the development of the notions of public health and state medicine. Faced with the terrifying smallpox epidemic, the state turned to law to fashion responses that were both authoritative and scientifically informed. However, the application of law to the problem of infectious disease was neither calculated nor coherent. Legal intervention was made possible through the efforts of a few individuals and/or groups with parochial agendas rather than through concerted state action, and the form of intervention ranged from adoptive to coercive policies. More strikingly, legal intervention was initiated and implemented without deep consideration of its social significance or consequences, or of other policy options for combating smallpox, such as education. This regulatory approach set the stage for social opposition to vaccination measures and state medicine, and operationalized the inordinate and often controversial focus on law as a tool of public health governance that is still evident to this day.

Furthermore, support for the application of law to the smallpox dilemma was largely based on statistical evidence of the effectiveness of vaccination. There was hardly any reliance on scientific facts about vaccine safety and efficacy in the legislative debates. Pro-vaccination MPs simply substituted generalized statistical comparisons of pre- and post-vaccination mortality rates for core scientific evidence about vaccine safety and efficacy. This approach is hardly surprising given the context of the times; vaccination as popularized by Jenner was an empirical remedy, and proof of its efficacy was established by successful case studies rather than through rigorous scientific examination of the modality of vaccination.

Finally, law did not play an “outsider” role in relation to the social controversies provoked by the ban on inoculation or by the adoption of vaccination. As cases such as Pilcher and Allen make clear, many of the disputes associated with vaccination in 19th century England were provoked by legal intervention. Rather, the machinery of law provided a distinct social setting within which various competing interests found expression and in some cases, recognition. Indeed, the anti-vaccination movement was as much a response to the authority of law as it was to the “scientific” and social implications of vaccination.

Secrets

'Secrecy, Betrayal and Crime' by Dina Siegel in (2011) 7(3) Utrecht Law Review  107-119 argues that -

In the past several years more and more hidden transgressions and crimes have been revealed in the media. Secrets that were kept for generations are no longer secret. Secret societies such as the Freemasons hold ‘open days’ and Cabbalists attract a wide audience to their courses and workshops, something unthinkable only twenty years ago. Whistleblowers reveal clandestine agreements between managers and directors of large companies; criminals (pentiti) make deals with criminal justice officials and provide information about organized crime; cyclists and athletes make tearful confessions about drug use in front of an army of TV journalists.

It looks as if Pandora’s box has been opened and all kinds of sins have emerged. However, going through the historical archives, we see that from time to time sensational and sometimes heartbreaking testimonies by victims of sexual abuse, or confessions by sportsmen, managers and drug traffickers have appeared in the headlines before. These confessions shocked the public, raised many questions and then disappeared again – until the mid 1990s/beginning of the 2000s, when a new wave of revelations in various sectors of society began to dominate the media and the public debate.

The relevant question for social science research is what exactly happened to make all these persons speak up? Why them and why now? How do society’s institutions react to these revela- tions? More in general, what is happening in our late modern society, where secrets seem to be a thing of the past? Various theories have been proposed to answer these questions. One possible explanation for this wave of revelations can be found in increasing governmental control and successful compliance by various public and private institutions. This explanation has been challenged by criminologists who argue that stricter control can only lead to even more secrecy and more sophisticated communication between the persons involved.

Another possible explanation is that although secrecy used to be functional in times of trouble, dictatorships and wars, as a symbol of political or religious protest to gain the under- ground support of a significant part of the population, today the word ‘secret’ has become synonymous with ‘illegal’ or ‘criminal’. Rather than being considered an offender, people prefer to be viewed as ‘victims of the system’, of late modernity with its impersonal, unstable relation- ships, mobility and risks. In such a society there is no place for secrets. This explanation has also been criticized, for example by authors like Mike Presdee, who have argued that the routine and boredom of late modern life can be a reason for individuals to lead a ‘second life’, where transgressions can be an answer to the emptiness of people’s existence. Presdee shows that longing for different forms of pleasure is a consequence of the increasing rationalization of public life, ‘that part of life that is inaccessible and untouchable to the “official world” of the scientific rationality of modernity and its politics, parties and politicians’. ‘Moral entrepreneurs’ describe this desire for pleasure as uncivilized or even criminal.

While earlier in history the functionality of secrecy was generally recognized and the violation of a secret was seen as betrayal, today secrecy is considered as an obstacle to risk avoidance, and the disclosure of secrets is viewed in our times as an expression of good citizen- ship. It is encouraged and in some countries even rewarded by the authorities.

In this paper, I will ask why attitudes about secrecy have changed, why in the last decades so many secrets have been revealed, either by individuals who are complicit (pentiti, whistle- blowers or cyclists) or by victims (of child abuse by the Catholic clergy) and outsiders (WikiLeaks activists). Who are the people behind the secrets? And how can we carry out research in closed and isolated groups who consider such information leaks a form of betrayal? What is the specific social context in which these revelations take place, and why is this happening now? I do not pretend to be able to answer all these questions. Much more (and more detailed) criminological research is needed for this. My purpose here is to place them on the agenda of future criminological research, especially by the Utrecht School of Cultural Criminology.

Siegel comments that -

The basic idea of the founders of the WikiLeaks website is that there should be no more secrets: no secret acts, no secret agreements, no secret promises. Everything should be open and transparent. Public and private organizations, as well as individuals, are no longer supposed to have anything to hide.

But who is behind WikiLeaks, who decides that absolute transparency is the highest value of late modernity? The site claims to have been founded by a group of concerned journalists, political dissidents and hackers, whose aim is to make confidential government documents available to the wider public. However, the idea that WikiLeaks is just a group of informers is not quite correct. In the process of revealing information a selection has to be made, as well as a decision about what is sufficiently important to put out and what is not. In this way, a new group of powerful individuals emerges, who are not only in a position to manage our information systems and to determine the political and social agenda, but also to play the role of censor, reminiscent of Big Brother.

According to the prison doctor and psychiatrist Theodore Dalrymple, WikiLeaks is achieving the opposite of what it is supposed to achieve. ‘Far from making for a more open world, it could make for a much more closed one. Secrecy, or rather the possibility of secrecy, is not the enemy but the precondition of frankness. WikiLeaks will sow distrust and fear, indeed paranoia; people will be increasingly unwilling to express themselves openly in case what they say is taken down by their interlocutor and used in evidence against them, not necessarily by the interlocutor himself’.40 In a sense, WikiLeaks is taking upon itself the role of a censor, in a totalitarian sense, because people will become afraid of writing what they really think and believe. ‘The ability to be secret is essential to the ability to be honest’. ‘WikiLeaks is setting itself up as a moral authority over the whole world’, and ‘even if some evils are exposed by it, or some necessary truths aired, the end does not justify the means’.

Another criticism of WikiLeaks’ activities is that their presupposition that the public wants to know everything is taken for granted. But not everyone wants to know everything, especially when it comes to facts that could destroy our trust. Comparable to the previously discussed ‘conspiracy of silence’ we do not want people to ruin our ideals, our fairy tales, or our heroes. The question as to whether the world will improve with vast amounts of information on every- thing and everybody remains problematic. It appears that the Internet has created new ways for betrayal, challenging us to reconsider our concepts of ‘trust’, ‘loyalty’ and ‘responsibility’. With the revelations by WikiLeaks a situation is created where people start to trust the Internet almost absolutely.

Phantoms

'What is the evidence of the impact of microfinance on the well-being of poor people?' (EPPI-Centre, Social Science Research Unit, Institute of Education, University of London 2011) by Duvendack, Palmer-Jones, Copestake, Hooper, Loke & Rao [PDF] comments that -

Despite the apparent success and popularity of microfinance, no clear evidence yet exists that microfinance programmes have positive impacts (Armendáriz de Aghion and Morduch 2005, 2010; and many others). There have been four major reviews examining impacts of microfinance (Sebstad and Chen, 1996; Gaile and Foster 1996, Goldberg 2005, Odell 2010, see also Orso 2011). These reviews concluded that, while anecdotes and other inspiring stories (such as Todd 1996) purported to show that microfinance can make a real difference in the lives of those served, rigorous quantitative evidence on the nature, magnitude and balance of microfinance impact is still scarce and inconclusive (Armendáriz de Aghion and Morduch 2005, 2010). Overall, it is widely acknowledged that no well-known study robustly shows any strong impacts of microfinance (Armendáriz de Aghion and Morduch 2005, p199-230).

Because of the growth of the microfinance industry and the attention the sector has received from policy makers, donors and private investors in recent years, existing microfinance impact evaluations need to be re-investigated; the robustness of claims that microfinance successfully alleviates poverty and empowers women must be scrutinised more carefully. Hence, this review re- visits the evidence of microfinance evaluations focusing on the technical challenges of conducting rigorous microfinance impact evaluations.

They go on to comment that -

There are only two Randomised Control Trials [RCTs] of relevance to our objectives; neither has appeared in peer review form. In our judgement, one has low-moderate and the other high risk of bias; neither finds convincing impacts on well-being. We found nine pipeline studies reported in ten papers, all based on non-random selection of location and clients; most have only ex-post cross-sectional data, some with retrospective panel data, allowing only low validity impact estimates of change in outcome variables.

We find no robust evidence of positive impacts on women’s status, or girl’s enrolments - this may be partly due to these topics not being addressed in valid studies (RCTs and pipelines). Well-known studies which claim to have found positive impacts on females are based on weak research designs and problematic IV analyses which may not have survived replication or re-analysis using other methods, i.e. PSM.

Given their importance in validating perceptions of the beneficence of microfinance interventions, we devote considerable effort to the assessment of with/without studies which have low inherent internal validity notwithstanding analysis with sophisticated methods. In particular, we discuss the two historically most significant studies (Pitt and Khandker 1998 and USAID funded studies in India, Zimbabwe and Peru – see sections 3.4.1 and 3.4.2, which, partly as a result of their prominence, have been replicated. The replications fail to confirm the original beneficent findings, and conclude that there is no statistically convincing evidence in these studies to either support or contradict the main claims of beneficence of microfinance. This is partly because of their weak research design. ...

[O]ur report shows that almost all impact evaluations of microfinance suffer from weak methodologies and inadequate data (as already argued by Adams and von Pischke 1992), thus the reliability of impact estimates are adversely affected. This can lead to misconceptions about the actual effects of a microfinance programme, thereby diverting attention from the search for perhaps more pro-poor interventions. Therefore, it is of interest to the development community to engage with evaluation techniques and to understand their limitations, so that more reliable evidence of impact can be provided in order to lead to better outcomes for the poor.

More pungently, the conclusion states that -

If indeed there is no good evidence to support the claim that microfinance has a beneficial effect on the well-being of poor people or empowers women, then, over the last decade or so, it might have been more beneficial to explore alternative interventions that could have better benefitted poor people and/or empowered women. Microfinance activities and finance have absorbed a significant proportion of development resources, both in terms of finances and people. Microfinance activities are highly attractive, not only to the development industry but also to mainsteam financial and business interests with little interest in poverty reduction or empowerment of women, as pointed out above. There are many other candidate sectors for development activity which may have been relatively disadvantaged by ill-founded enthusiasm for microfinance. Even within the microfinance sector, the putative success of basic models of lending such as the Grameen Bank and related models, may well have diverted attention from opportunities for alternatives; for example, recent studies (Collins et al. 2009) have pointed out that poor people do not just need credit but access to other financial products such as savings, and insurance. Also, the financial products offered by MFIs must become more flexible and adjust to rapidly changing circumstances faced by poor people. Many MFIs have already moved in that direction, providing more diverse and flexible products.

However, it remains unclear under what circumstances, and for whom, microfinance has been and could be of real, rather than imagined, benefit to poor people. Unsurprisingly we focus our policy recommendations on the need for more and better research. Thus, to have obtained a clearer picture on the impacts of microfinance, on whom, where, and when (e.g. under what circumstances), and the mechanisms which account for these effects, more and better quality quantitative evidence was required at an earlier stage in the diffusion of this intervention. While there is currently enthusiasm for RCTs as the gold standard for assessing interventions, there are many who doubt the universal appropriateness of these designs. Indeed there may be something to be said for the idea that this current enthusiasm is built on similar foundations of sand to those on which we suggest the microfinance phenomenon has been based.

COPPA

'Why parents help their children lie to Facebook about age: Unintended consequences of the ‘Children’s Online Privacy Protection Act’' by danah boyd, Eszter Hargittai, Jason Schultz, and John Palfrey in 16(11) First Monday (2011) argues -

Facebook, like many communication services and social media sites, uses its Terms of Service (ToS) to forbid children under the age of 13 from creating an account. Such prohibitions are not uncommon in response to the Children’s Online Privacy Protection Act (COPPA), which seeks to empower parents by requiring commercial Web site operators to obtain parental consent before collecting data from children under 13. Given economic costs, social concerns, and technical issues, most general–purpose sites opt to restrict underage access through their ToS. Yet in spite of such restrictions, research suggests that millions of underage users circumvent this rule and sign up for accounts on Facebook. Given strong evidence of parental concern about children’s online activity, this raises questions of whether or not parents understand ToS restrictions for children, how they view children’s practices of circumventing age restrictions, and how they feel about children’s access being regulated. In this paper, we provide survey data that show that many parents know that their underage children are on Facebook in violation of the site’s restrictions and that they are often complicit in helping their children join the site. Our data suggest that, by creating a context in which companies choose to restrict access to children, COPPA inadvertently undermines parents’ ability to make choices and protect their children’s data. Our data have significant implications for policy–makers, particularly in light of ongoing discussions surrounding COPPA and other age–based privacy laws

The authors comment that -

COPPA’s approach to privacy depends on two main premises: (1) that parents will be able to give sites informed verifiable consent regarding data collection practices; and, (2) that age–based privacy protections are both appropriate and achievable. Our data suggest that this second premise — relying on age–based models — is producing unintended consequences that undermine COPPA’s goals. In response, we propose that policy–makers shift away from privacy regulation models that are based on age or other demographic categories and, instead, develop universal privacy protections for online users. This would avoid creating an environment where service providers like Facebook have incentives to “divide and conquer” populations in terms of privacy and data collection policies. This would not only eliminate the problems with age–based prohibitions and circumventions, but also provide increased privacy protection to both teens and adults. As modern online data collection and advertising practices become more complex, it is not just children who need protections (Hoofnagle, et al., 2010; Hoofnagle and King, 2008; Montgomery and Chester, 2009).

Furthermore, given many parents’ openness to recommendations, it might be useful to develop mechanisms to provide parents with recommendations about the appropriateness of various sites for children of different ages and the various risks that users may face. Our findings show that parents are indeed concerned about privacy and online safety issues, but they also show that they may not understand the risks that children face or how their data are used. Greater transparency and increased information flow can help parents make appropriate decisions.

Boyd et al conclude -

Our findings call the efficacy of COPPA into serious question. The data also point to unintended consequences of the COPPA model of regulation of Web–based services. The online industry’s response to COPPA’s under–13 rule and verifiable parental consent model is largely proving incompatible, and at times, antithetical to many parents’ ideas of how to help their children navigate the online world. Instead of providing more tools to help parents and their children make informed choices, industry responses to COPPA have neglected parental preferences and have altogether restricted what is available for children to access. As a result, many parents now knowingly allow or assist their children in circumventing age restrictions on general–purpose sites through lying. By creating this environment, COPPA inadvertently hampers the very population it seeks to assist and forces parents and children to forgo COPPA’s protection and take greater risks in order to get access to the educational and communication sites they want to be part of their online experiences.

Legislative or regulatory solutions that seek to “update” COPPA must confront this paradox and these fundamental flaws in its design. As long as the emphasis of the regulatory approach remains on age–based cutoffs and onerous consent mechanisms, it is likely that general–purpose Web sites will continue to block access to anyone under the age cutoff. In response, parents who wish for their children to participate on such sites will continue to assist their children in deceptively circumventing such restrictions. This is neither a solution to privacy and online safety concerns nor a way of empowering parents.

Increased enforcement efforts, either through governmental actions or Terms of Service crackdowns, will only further upset parents and potentially increase legal risks resulting from the acts of circumvention they undertake. Legislative efforts to increase minimum age requirements or strengthen age verification will complicate and increase the cost to companies of compliance, further encouraging them to focus on denying access rather than providing privacy protection or cooperating with parents. Again, this neither empowers parents nor helps youth. Conversely, such efforts would serve to position the government as “in loco parentis,” thereby undermining parental rights and freedoms. Not only would an “in loco parentis” framework run counter to most parents’ desires, but it would also undermine the very goals of COPPA: providing parents with additional information and options.

Parents are concerned about children’s safety and privacy, and governmental agencies have every reason to want to step in and help, but restricting access — or creating regulatory solutions that encourage companies to restrict access — is counterproductive. New solutions must be devised that help limit when, where, and how data are used, but the key to helping children and their parents enjoy the benefits of those solutions is to abandon age–based mechanisms that inadvertently result in limiting children’s options for online access.

IELTS

There's not a lot of comfort in the 76 page report by the Victorian Ombudsman on its Investigation into how universities deal with international students [PDF].

The Ombusman makes 17 recommendationa -

R 1 - Review their minimum IELTS scores for admission to courses based on evidence about the academic needs and performance of students by mid-2012, and provide the findings to my office.

R 2 - Amend their admission procedures to require admissions officers to verify IELTS test results submitted by prospective students and report evidence of student anomalies to testing organisations.

R 3 - Require all international students, including students who have completed pathway courses, to submit results of an independent language test, taken not more than twelve months previously, prior to enrolment in higher education programs.

R 4 - Monitor and report annually to their academic governing bodies from 2012 about the academic progress of international students who enter university through different English language pathways.

R 5 - Conduct annual reviews of their admission standards.

R 6 - Review English language services for students by mid-2012 to identify the extent to which students use existing services, including identifying any barriers to student participation and models for providing effective in-course language support to all students.

R 7 - Review the extent to which academic staff, including sessional staff, use professional development resources designed to help them teach and assess diverse groups of students, and identify any barriers to staff participation and models for providing practical support to staff.

R 8 - Appoint external examiners to report on their academic standards and assessment methods.

R 9 - Commission an independent risk assessment of the extent of cheating and bribery amongst staff and students and the effectiveness of their existing policies and procedures by mid-2012 and provide the findings to my office.

R 10 - Remind staff about their obligations to report plagiarism, cheating and other academic misconduct under university policies and procedures.

R 11 - Advise all staff about the provisions of the Whistleblowers Protection Act 2001 and provide regular training in this regard.

R 12 - Review written complaint and appeal policies and procedures against regulatory requirements and the Ombudsman’s guide to complaint handling for Victorian public sector agencies.

R 13 - Review the accessibility of their complaint and appeal systems, including simplifying their systems and their communication with students by mid-2012, and provide the findings to my office.

R 14 - Improve information and training for staff about complaint handling, including through induction programs and the appointment of complaint officers, either centrally or in schools, to advise and assist staff.

R 15 - Record and monitor all complaints and appeals, including those managed within schools and administrative areas, and report annually to their governing bodies.

R 16 - Review policies and procedures for dealing with unsatisfactory academic progress, including:

• barriers to student engagement
• ways to identify ‘at risk’ students earlier
• communication with students during university vacations
• ways to manage students who have re-enrolled while appeals are underway.

R 17 - Audit compliance with regulatory and quality standards regularly at a school and administrative division level. These audits should examine the implementation of standards in practice through consultation with academic staff and students.

Those recommendations reflect the Ombudsman's comments that -

International education activity as a whole generated $5.9 billion for the Victorian economy in 2009-10.

Victoria’s reputation for providing quality higher education has been a key selling point for universities. There has been considerable effort on the part of governments to protect and promote this reputation, particularly following the recent downturn in the international student market.

Complaints from students at universities to my office, however, have more than tripled in the last four years, from 176 in 2007-08 to 534 in 2010-11. Many of these complainants identify themselves as international students and most contact my office because their university has, or is proposing to, exclude them because of poor academic performance. Complaints from students at universities to my office have more than tripled in the last four years.

I have observed some concerning patterns with these complaints:

• A number of international students struggle to communicate in English. This is despite the fact that universities are meant to ensure they have appropriate English language proficiency before admission.
• Some universities have been the source of a disproportionately high number of complaints.

At the same time, I have received disclosures under the Whistleblowers Protection Act alleging improper conduct at some universities, such as bribery or preferential treatment of students. ...

My investigation initially focused on the universities’ handling of student complaints, but as it progressed I also identified issues with:

• English language admission standards and support services
• academic standards and conduct
• regulatory arrangements.

The Ombudsman went on to comment that -

Several witnesses claimed that universities are reluctant to face problems with their admission policies for fear of reducing international student numbers and revenue. My investigation obtained internal documents from three universities showing business considerations have factored in discussions about admission policies.

My investigation obtained internal documents from three universities showing business considerations have factored in discussions about admission policies.

The universities rejected any suggestion that admission standards have been compromised by revenue. They expressed concern about the methodology for my investigation, particularly the number of witnesses interviewed. Swinburne noted that other factors, in addition to English language skills, affect international students’ academic and career prospects. RMIT and the University of Ballarat referred to the published data showing international students have pass rates comparable to local students and dismissed contrary evidence from witnesses as ‘anecdotal’.

However, my investigation identified that only one of the four universities – Swinburne – has been regularly collecting and analysing data about the academic performance of students admitted through different English language pathways to verify its own policies. This is despite a 2002 report from Victoria’s Auditor-General recommending all universities track the relationship between admission pathways and academic outcomes to support admission decisions.

I consider that the universities need to shift their focus from recruiting students and boosting their revenue to ensuring their international students have the necessary skills to study successfully. ...

The growth of international education at Victorian universities has been rapid and far-reaching. The pace of change is likely to continue with the introduction of demand-driven funding for local students and plans to increase participation in higher education.

Recent disclosures to my office under the Whistleblowers Protection Act, along with media debate about ‘soft marking’ of students, raise questions about how universities are maintaining standards in the face of these changes.

The four universities all have quality assurance systems and processes and aim to promote proper conduct through staff codes of conduct and strategies to discourage and detect plagiarism.

I consider that the universities need to strengthen their systems. The university staff interviewed during my investigation were committed to giving international students a meaningful education, and to preserving quality and standards in the face of significant changes to their working environment. However, some staff reported experiences that are cause for concern. These include:

• A nursing lecturer at one university said her head of school had given extra marks to students because he thought the failure rate for her subject was too high and he wanted ‘to get the traffic lights green’.
• Academics at three universities said the way they assess students has changed, with less emphasis on written examinations and more emphasis on other types of assessment such as group work.
• Academics at three universities said plagiarism is a problem for students. One RMIT academic described it as ‘running rampant’.
• Six of 15 academic staff interviewed from the four universities reported they had been offered a bribe by a student in the past, or knew of colleagues who had been offered a bribe.

The report unsurprisingly does not grapple with the 'elephant in the classroom', ie the question about funding tertiary education and the role of the 'enterprise university'.

Directions in copyright reform

Reading the Copyright Council Expert Group (CCEG) report on directions in copyright reform in Australia [PDF] and the European Commission report on Trends and challenges in demand-side innovation policies in Europe [PDF].

The 12 page CCEG report has been produced by an academic group convened by the Australian Copyright Council to "provide expert advice on possible reform of areas of tension in Australian copyright law". The group's members are: David Brennan (University of Melbourne), Melissa de Zwart (University of Adelaide), Michael Fraser (Communications Law Centre, University of Technology Sydney), David Lindsay (Monash University) and Sam Ricketson (University of Melbourne). The report makes broad recommendations for reform regarding -

• Non-commercial transformative use of copyright works
• Internet intermediary liability
• Orphan works
• Registration of copyright works

:The 42 page EC report aims to

• identify the trends in the deployment of demand-side innovation policy at national level in the EU Member States during the period mid-2009 to mid-2011;
• give an overview on recently introduced demand-side innovation policy measures and to ascertain if there are any observable patterns;
• provide insights into how demand-side measures are being implemented;
• analyse governance practices for coordinating between demand-side and supply-side measures.

Cultural Identity and Marks

'The Case of the Zia: Looking Beyond Intellectual Property Laws to Protect Cultural Rights' (forthcoming in Chicago-Kent Journal of Intellectual Property) by Stephanie Turner explores an ongoing dispute in US trademark law involving use of the Zia pueblo 'sacred sun' symbol.

Turner comments that the Zia have been using the symbol in religious ceremonies since 1200 C.E.

The symbol now appears on the New Mexico State flag, letterhead, and license plate, and on commercial products ranging from chemical fertilizers to portable toilets. The tribe claims that the State appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages the tribe in violation of Section 2(a) of the Trademark Act. This Article tells the Zia story, focusing on the harms the tribe faces when others appropriate its symbol and the possible solutions. It concludes by suggesting that indigenous groups like the Zia should move beyond intellectual property laws in the fight to protect their cultural rights.

Turner concludes -

... the fight to protect cultural rights is not an easy one. Over the past twenty years, the people of the Zia Pueblo have seen both successes and failures in their fight to protect their sacred sun symbol. But what is perhaps most striking about the Zia story is that non-legal measures — including education, political lobbying, and respectful negotiations — have proven far more effective in the tribe’s fight than has trademark law.

As we have seen, the Zia attempted to protect their sacred sun symbol twice during the 1990s by blocking registration under Section 2(a) of the Trademark Act. In both cases, the Zia succeeded at stopping commercial entities from obtaining registered trademarks containing the symbol. But they did not succeed thanks to trademark law; rather, they succeeded by exerting social and political pressure. Those attempts were symbolically important, but also costly and wearing, resulting in no helpful legal precedent. The Albuquerque Hearings further revealed that trademark law as it stood—and even the recommended changes—could at most provide an incomplete remedy for the harms incurred by tribes like the Zia. Even an improved version of trademark law would not provide the Zia with a sufficient amount of control over their symbol, nor would it provide them with monetary and other benefits for outsiders’ uses of their symbol.

This is not to say that our current trademark regime is entirely ineffective. To the contrary, for indigenous groups that can afford to use the legal system, it may indeed be one useful option. It is also entirely possible that a legal solution exists for the harms incurred by groups like the Zia. Amending Section 2(a) of the Trademark Act to include tribal insignia represents one possibility, though it may not be the best or only one. Certainly, the Government should continue to consider modifying trademark law to protect more fully tribal insignia and Native American cultural rights more generally.

Even as trademark law is an imperfect solution, the case of the Zia demonstrates that non-legal measures can fill the gaps and play a significant role in protecting cultural rights. The Zia repeatedly have turned to non-legal approaches over the past twenty years: they have educated the USPTO, demanded reparations from the State, garnered the political help of a Senator, and pressed Congress to fashion a new legal remedy. The Zia have not always achieved the results they sought, but their efforts did lay the foundation for the creative and effective system that the tribe uses today. By negotiating informally with commercial entities and the State, the tribe attains benefits — including donations to its scholarship fund, positive publicity, and political sway — that it never could find through trademark law.

The case of the Zia undoubtedly is unique and cannot speak to the needs of every indigenous group. But it strongly suggests that, in the current climate, indigenous groups should take a similar approach in the fight to protect their cultural rights. Indeed, Native American tribes can go even further than the Zia have in exploiting non-legal tools. The possibilities are endless — “protests, lobbying for legislation, and other methods of political pressure” are just a few. This lesson might prove most helpful to tribes that face situations like that of the Zia — that is, for those that seek specifically to protect their tribal insignia. But those whose claims would fall within the scope of trademark law — for example, groups seeking to protect their tribal names, and, indeed, the Native Americans hoping to cancel the Washington Redskins’ trademarks — should heed this lesson as well. Even more generally, indigenous groups who might turn to other intellectual property laws—including copyright and patent—to protect their cultural rights should consider looking to non-legal approaches in addition or instead. For ultimately, the case of the Zia shows us that non-legal measures may just be the most effective tools of all.