Law & ethics in the business environment

Chapter I, Question #2

The legal and ethical issues in this case are complex and are currently under scrutiny in California and in other areas where the concept of “duty” as it applies to the law are under assault.  As determined by the California appellate court in 1998, Fiss had a contractual duty to respond to Tidmore’s call for assistance in changing a flat tire for him.  However, the accident that occurred during the engagement of Fiss’ services turned things into a mess that is hard to dissect as to ethical and legal considerations.

The first issue to be discussed in the Tidmore cases was if the auto club could have refused to send Tidmore assistance when he called. Yes, they could have, but Tidmore would have had an excellent case under contract law statutes for breach of contract. Tidmore has paid for a service from the auto club and is entitled to that service. This point of law may be the single easiest one to determine in the entire discussion, but even this one can get murky when circumstances are applied. Ultimately, the appellate court used this contractual obligation as a major factor in determining the law with regard to the Tidmore case.

Specifically, attorneys for the respondent (the auto club) had argued that they bore no responsibility for Tidmore’s injuries because his injuries resulted from his own neglect, i.e. he allowed the events to happen the way they did.  Under negligence laws, he was responsible for his own injuries. While this argument seems questionable given that Tidmore had a contract with the auto club for just this sort of problem, the trial judge accepted the argument and the respondent’s request for summary judgment to dismiss the case. Tidmore had to take his case to the appellate court to let the facts be heard and to hopefully get results totally nothing like the previous judgment rendered.

In its ruling, the appellate court said that the trial judge had misapplied California’s “rescue doctrine” and sent the case back to the trial court for hearing. The trial court relied on existing case law to make the decision, but it can be very complicated. The law states that when a person is in a situation caused by negligence and a second person is injured while trying to correct the situation, the second person may recover damages from the person who was negligent.

The trial court asserted that the rescue doctrine by its very nature implies the existence of a third party who is negligent. The trial court ruled that since the negligence was, depending on the side being argued either Fiss’ for improper use of the jack, or Tidmore’s for creating the circumstance by allowing his tire to go flat, there was no third party involvement and the rescue doctrine did not apply.  Tidmore confirmed the auto club’s assertion of facts but contested their application of the law and won on the appellate level. But this issue is far from resolved. The question still revolves around the concept of duty as it applies to personal injury law.

In the Law Review of Southern California, attorneys recently noted a disturbing trend among southern California courts to rule, as the trial court in the Tidmore cases did initially, that there is no special duty associated with a case and therefore that no one can be held responsible. The law review article argues that this is not the intent of California law and is an attempt to undermine juries and confuse the roles of juries and judges in negligence cases. Indeed, it is an effective tool of defense attorneys attempting to whisk away their clients from responsibility for their actions.

While the law varies state to state, many states including California have laws which provide that the citizen has a moral duty to prevent injury to others when possible.  While the legalities of the issue are complex, it ultimately should result with Tidmore being able to sue the auto club for his injuries.  Furthermore, Fiss should have also been allowed to sue Tidmore had he ignored her pleas for help.   When viewed this way, the applicable ethical rules are much less sketchy.

Ethically, the auto club was required by virtue of the contractual agreement to assist Tidmore when, he as a client, asked for their services. Tidmore was required to attempt to assist Fiss. Though her legal remedies had he chosen to not assist her would have been on shaky ground, he had some legal responsibility as well under California law as discussed previously.

Regardless, though, of the perceived legal duty, Tidmore had an ethical responsibility to attempt to prevent injury to a fellow human being if doing so was within his capacity to help. Even if Tidmore had been able to anticipate the injury to himself in doing so, his ethical responsibility was to attempt to assist Fiss so long as doing so did not put him in mortal danger. This sense of duty is born out of the nature of humanity and the reality that no one would willingly choose monetary issues over their own health and well-being.

The argument that the law review writers rely on is accurate though flawed. Citing the old comedy routine of Jack Benny in which a thief says “Your money or your life” and Benny replies, “I’m thinking, I’m thinking”, the article asserts that no one would ever actually reply in a manner indicating a trace of willingness to give up their life. However, we know that despite the author’s assertion, people often choose money over health in everything from buying the cheapest, and sometimes least nutritious foods, to choosing to issue the payment for a new car rather than buy health insurance.

However, even if the reasoning is wrong, the rule of ethics consistently prevails; we must as empathetic creatures attempt to prevent injury to others when we can reasonably do so. The only question for debate should be regarding what effort constitutes reasonable.

This case represents a situation where the law has not been able to keep pace with ethics at work.  In years past, it was assumed that people would naturally attempt to help one another and the only laws needed in this regard were to prevent the “Good Samaritan” from being sued for inability to assist or for doing something that, though well-intended, resulted in an adverse consequence. Now, society has changed to the point where it might be necessary for the ethical response to a situation to be encoded as law.  People can no longer be relied on to do the right thing at specific times.

 If Tidmore had taken no action to assist Fiss, his actions would have been reprehensible, but possibly perfectly legal. While it is reasonable to advocate caution in legislating ethics, these issues must be addressed to maintain order and empathy within society.

Chapter II, Question #9

Large corporations could benefit highly from tactics taken to combat group-think and institutionalized ideas which run counter to corporate mandate.  Perhaps the greatest evidence of this comes in the form of a Harvard Business Review article, “Disruptive Technologies:Catching the Wave”. Though the article specifically discusses the problem of group-thinking, research and design, the methodology suggested in the article could contribute to healthier corporate environments.

Too often, newcomers with great ideas about corporate procedures are told that the reason an activity is done a certain way is that “we’ve always done it that way.” Having a system in place to challenge those presumptive behaviors can lead to longevity in the business world and better ethical practices in general.

How then does a company encourage re-evaluation without undermining itself? The authors of “Disruptive technologies” suggest having a separate entity responsible for new product development that is kept complete away from existing established patterns in the company operations so that it is not corrupted by them. (Harvard Business Review, March, 2002) To be fair, this approach could work in most corporations as well, if modified. An internal audit, not financial but operational, could be conducted within the firm.

By having the audit conducted by mid-level managers instead of by the upper management, employees would be more likely to contribute to the discussion of how things should be accomplished. By identifying one employee and then placing him in a position to audit a completely different department, the company could be assured that its procedures are seen with fresh unbiased eyes. This system will only work, however, if a company allows complete transparency in its operations and if management means exactly what they say they mean. Too often the internal corporate culture runs contrary to the written code of conduct. For example, in many work places, the official policy requires that worked must be documented every minute.

Meanwhile, the unofficial policy requires that the work has to be done or people lose their jobs – through it all, there is no approved overtime. These policies are contradictory, but all too common. One key, then, to preventing group-think is to have procedures honestly and thoroughly reviewed by someone who has never done the job and who has no vested interest in the manner in which it is currently being done. Another key is to promote transparency in management. The company must say what it means and mean what it says, even in discussing matters that are generally avoided such as increases in overtime rates or approval for additional manpower.

Chapter III, Question #5

There is no express right to privacy in a strict view of the laws that make up the Constitution. The right to privacy was a creation of the Warren Court and was a justification for judicial action which in reality fell outside of the realm of the things covered by the Constitution, specifically Roe V. Wade.  At that point in history, the Supreme Court argued that the rights guaranteed by the Constitution and the Bill of Rights were not inclusive of all rights the individual could and should have. Privacy was at the top of the list of enumerated rights.

Given the Warren Court’s view, there could be an argument that Garden city law requiring video surveillance of cybercafés violated basic rights to freedom of expression and to privacy. However, what is more intriguing is the dissenting judge’s opinion regarding the role of the internet as a means of free speech and freedom of the press.

The concept that the internet is an open forum for the free discussion is one of the drawbacks that researchers face when using the internet for academic reasons. So then respecting the internet, as the judge suggested, as a forum for free speech and free press is not an unappreciable argument. However, what the judge fails to address is the reason for videotaping people while they are exercising these freedoms. American law has long held that a person could be held responsible after the fact for the things that they publish. As long as there is no prior restraint, there is no reason to view the use of the video cameras as a violation of the rights to free speech or freedom of the press.

Chapter IV, Questions #1-4

Question #1

Ethically speaking, there is no difference between denying someone tenure because she is a woman and doing the same because she is a mother and might spend less time on her work responsibilities.  The two both spell discrimination based on stereotyping and are not ethical things to do.  There are specific jobs that require males and they are usually jobs that will be physically laborious in nature.

But even with these jobs in mind, women are not to be barred from wanting to apply.  In the given case, it was not ethical for the two superiors to not want to give tenure to a female married employee who is as well a mother of growing kids and who can at any time have her next baby.  Denying someone tenure should be based on the concerned employees’ lack of competence and capability to deliver the required output efficiently.

One should not take against an aspiring employee her being a wife and mother and should not use such circumstances for gauging her performance and future prospects in the organization.  It is unethical to allow stereotyping to affect employment decisions because it results to industrious and efficient people being denied what they deserve and aspire for – whether it is a new job or a promotion – just because of preconceived notions, wrong assumptions and worse, discrimination.

Question #2

Stereotyping means having generalized or standardized conceptions or ideas for an entire group of people, such that each member of the group is presumed to be like all the rest.  Stereotyping is often based on limited awareness or knowledge about groups – types or castes – of people.  A stereotyping person is so short-sighted and narrow minded that he will believe he knows what another person is like and what he can do basing on a classification or a group he belongs to.  Stereotyping, then, deprives people of being known and appreciated for what they really are.

 Other than stereotyping women who are wives and mothers as well, some people stereotype all Asians as unfriendly but intelligent people, the Jewish people as scheming merchants who are greedy for money, the Muslims as religious fanatics who would die for their faith, and the African-Americans as generally athletic, musical, loud and dirty.

While stereotyping can mean perceiving somebody in a positive or negative light, discrimination specifically involves rejecting people as being undesirable on such grounds as race, religion, or financial status.  Just like stereotyping, discrimination makes a person reject another in an outright manner – without just and substantial basis.

Question #3

One famous case in which a private sector employee claims discrimination or wrongful discharge based on stereotyping is that of Andrew Beckett, whose story was told in the movie “Philadelphia”.  Andrew Beckett was a talented lawyer working for a reputable law firm based in Philadelphia.  He was a homosexual who contracted AIDS and was fired by the firm’s senior partner when the latter saw lesions associated with AIDS on Andrew’s face.  Andrew fought the firm in court on the grounds of discrimination.

He was clearly a valued lawyer in the firm, having been tasked to handle the case of the firm’s most important client.  Not wanting to admit that Andrew was fired because he had AIDS, the firm tried in vain to justify that their move was based on Andrew’s inefficiency.  They went as far as manipulating facts through rehearsed lines of witnesses to prove that Andrew, especially during his last days with the firm, had deteriorated in terms of skills and ability. In the end, the truth prevailed and Andrew won his case.  He died shortly after the verdict was given.  The law firm was charged with discrimination and was made liable to pay damages.

Question #4

The Back case demonstrates that the family is an institution that remains to be the solid priority of most people even during these times when so much has changed compared to the years of long ago; this case, therefore, supports Dowd’s claim.  Jobs, business opportunities, relationships with friends, future plans – all these are important things in life that somehow have to be synchronized with one’s role in his or her own family.

The perfect balance therefore is attained when one can attend to his or her role in his family – whether as father or mother, brother or sister, or son or daughter – and also have sufficient time for a thriving career, selected real friends and maybe, a meaningful cause to be involved in.

The Goodridge case, on the other hand, is an example that demonstrates “culture subverting the legal definition of family.”  The idea of gays getting married is so totally against the conventional and conservative way of viewing marriage as the onset of the making of a family.  Such case changes the traditional meaning of marriage by arguing that procreation is not its only purpose.  While such argument is true, gay marriages have been allowed by laws.  In the end, it is up to the two gays to make their relationship – and their marriage – work.  Meanwhile, their marriage gives them rights enjoyed by people only through the bonds of legal marriage.

Chapter V, Questions #1-5

Question #1

According to Shue, the six indicators that a “cost” factor is actually a ‘harm” factor where use of foreign labor is concerned are the following:  a) the damage actually done is physical; b) the potential damage is not simply physical; it is serious and possibly fatal; c) the damage that is risked is irreversible; d) the potential physical damage to the workers is undetectable without medical care to which the workers have no access; e) the damage is unpredictable for the victim, even probabilistically, without a level of knowledge to which the workers have no access; and lastly, f) the undetectability and unpredictability of the damage are avoidable at the option of the firm’s management.

By describing harm as “unavoidably undetectable”, the author meant that the harm inflicted on the people remains undetected until it grows to such a serious and grave proportion that will render the harm discoverable by the victim.  This happens all the time to people with no access to doctors whose treatment and gadget would have made possible the early or timely detection of the harm.  Thus, the undetectability of the harm would have been arrested or addressed if doctors are around and willing to do regular checks on the physical condition of the employees.  Since this is not at all the case of such poor people in their poor surroundings, such undetectability – instead of becoming something that can be acted on and thus, avoided – becomes unavoidable in nature.

Question #2

When Shue writes that poor countries face an “analogous choice” as they compete for foreign investment, he means to say that when the governments choose to allow harmful labor practices to be exercised by foreign companies operating in their countries, such choice they made are somewhat similar to the choice made by the firms as they implement harmful policies in their operations.

The government’s analogous choice is based on its fear of losing the investing company’s operations to another country that will allow such harmful practices.  Thus, the government of one poor country will require foreign companies operating in their territory to put up manufacturing plants that will be safe and healthy working areas for its people only if the governments of alternative poor countries will impose the same rules, thereby not lessening his own country’s attractiveness as a site for low-cost operations.

On the other hand, the company’s similar choice is to get on with their harmful practices since they mean cheaper production costs.  The management will consider looking out for their employees’ health and safety by opting to use more expensive but safer equipment and gadgets only if other companies will do the same.  Thus, the company will choose to do the right thing and will be willing to incur increased costs only if all their competitors will incur added costs also – thereby ensuring that their finished products will not be more expensive than the others, and therefore will be marketable.

Question #3

The company Unocal possessed neither form of responsibility in Myanmar.  If the company possessed responsibility through ability, it would have effected changes in the way the local villagers were treated and compensated for the construction of their pipeline.  Instead, as stated in the case, they looked the other way while the villagers were intimidated into working on the project by violent means such as rape and torture.  Indeed, Unocal was not actively engaged in the abusive acts committed.  But they could have done something about it; instead, they did nothing.  If Unocal possessed responsibility through complicity, they would not have counted as perks for their decision to invest in Myanmar the savings generated by such cheap labor obtained through abusive ways.

The Unocal people well knew about the violence and pain inflicted on the workers.  Knowledge of it placed them in positions to put a stop to it all.  In fact, they had the power to do what was right and choose fair and just means of having their pipeline constructed.  Still, they did not.

Question #4

Everybody who is aware of the unsafe and unhealthy conditions of existing working places should do something about it.  The collective effort from all concerned parties would have better chances of pushing for the needed changes.  The workers should voice out their rights to safe and healthy working places; the company should be responsible enough to do the right thing without worrying about the added costs;

the government of the foreign country should impose applicable rules to look after the health and safety of their constituents; the American government should likewise mandate companies setting up operations in poor countries to provide for their employees’ health and safety; international safety and health organizations should help pressure concerned parties to do their role; then, the individual American consumer should take seriously their responsibility through complicity by being in the know and by actively refusing to patronize products of the guilty companies.

Question #5

The communitarian theory rules that the community is valuable not merely as a means to the protection of individual rights, but also as a positive human good.  The community has a responsibility to promote the good of its members.  Under this theory, then, employees of companies with unsafe and unhealthy working policies should as a community feel responsible for each other’s good health and well-being.

This sense of community should trigger moves for the employees to have a dialogue with the company management regarding their condition in the working place, to request their government to support their cause, to further seek the intervention of the American government and international health organizations, and to disseminate information about their situation so that the end consumers would be aware of it and be driven to do their part.

Chapter VI, Questions #5

For doing his job and sincerely caring for the grizzly bears of Yellowstone, ranger Bob Jackson was suspended from his post and was told not to discuss the matter with the media.  With the assistance of lawyers from the Public Employees for Environment Responsibility (PEER), Jackson filed a claim against the National Park Service (NPS) under the nation’s whistleblower laws.  These laws protect employees who report health and safety problems or other violations by their employers. (www.ens-newswire.com)

According to documents appended to the complaint filed by PEER with the U.S. Office of Special Counsel on behalf of Jackson, various Yellowstone managers had also threatened to block Jackson from returning to the park in the following season. (www.ens-newswire.com)

Still, good gestures and noble intentions, even against many odds, will in the end be repaid.  An agreement was eventually sealed between Jackson and NPS.  Such agreement required the agency to rehire Jackson as a backcountry ranger in the Thorofare area, where he has been assigned for the last 24 years.  (www.ens-newswire.com)

Chapter VII, Questions #1-4

Question #1

The tobacco industry manipulated adults regarding the dangers of smoking through the following:

Cleverly targeted advertisement campaigns that created abstract images of cigarette-smoking as something indulged in by attractive, independent and even sexy people; Reversal of the general knowledge that cigarette is bad for one’s health, again through the cunning use of advertisement campaigns that presented health-oriented packaging for the cigarettes; Production of revolutionary types of cigarettes that were supposed to be safe and healthy such as low-tar, low-nicotine sorts;

Introduction into the market of filter-tipped cigarettes which their campaign lines described as  “trapping the dangerous component of the cigarette without taking away its flavor”; The young smokers, on the other hand, were manipulated through the following:

Successful marketing innovations that aimed to recruit younger people and to influence them into becoming eventual smokers;

Massive advertising with the cigarette companies’ logos found everywhere to bring home the message to young people that “tobacco use is desirable, socially acceptable, safe, healthy and prevalent”; Launching products like the Virginia Slims of Philip Morris, which were specifically attractive to younger girls; Coming up with a cigarette type that was supposed to be mild-tasting and containing lower amounts of nicotine;

Introduction of Joe Camel, a character who appealed to under-aged consumers and who was made very visible by printed ads and television spots; and, Sponsorship of television shows and radio programs for children and the youth; this brilliant move enabled the cigarette companies to reach out to this prospective market segment even when cigarette ads were supposed to target only people over the age of 21, as imposed by the Cigarette Advertising Code.

During the time when there was a huge and massive campaign regarding the health dangers that cigarette-smoking can cause, the cigarette industry leaders put their heads together and came up with a document through which they formally pledged their commitment and support for the research and studies regarding tobacco use and its effects on health.  This written promise to aid and assist such endeavors was placed in a full-page advertisement that was printed in 448 newspapers around the country, which represented a total circulation of more than 43 million people in about 250 cities.

Even now, it is common knowledge that cigarette does more harm than good to the health, but most people do not even care.

Question #2

The author has cited in the case that far from discouraging people from smoking, the renowned clip that it is dangerous to their health – a required line to be made part of all advertisements of cigarettes – in fact served to attract people to try them out and to smoke, given their natural penchant for what is dangerous and not safe.  Thus, what was intended to be a fair warning about the ill effects of cigarettes ironically appealed to the adventurous and even proud side of some consumers.

Question #3

Though the internet age has enabled people all over the world and of all age brackets to gain access to all sorts of available information, promotion and advertisement of all products available in the market, I believe that there should be special restrictions on the advertising and marketing of products that are lethal like cigarettes, liquor and other hard drinks. The same restriction imposed by the Cigarette Advertising Code should remain to exist and should be attached with penalties so that it will be taken seriously and will be honored by the concerned manufacturing companies.  A legal challenge mounted against this opposition might use the “freedom of speech and expression” line. But as long as there are enough people to lobby such restriction, it will continually be enforced.

Question #4

A free market thinker would view the history of the tobacco industry described by the authors as communitarian.  The industry’s history is a saga of the repeated attempts by concerned members of the community to educate the infiltrated portion of their community regarding the dire effects of cigarette-smoking.  In the same manner, community members who were convinced that cigarette does not really pose a threat to their health and instead actually made them feel good and confident would do the same thing and win other community members to their side.

Question #5

The World Health Organization’s Framework Convention on Tobacco Control (FCTC), the first world treaty dealing with public health, entered into force on 27 February 2005, thus making the provisions of the treaty legally binding for the first 40 Contracting Parties to the Convention.  Even now, almost three years since its inception, the treaty remains steadfast in its aims to advance international cooperation to protect present and future generations from the preventable devastating health, social, environmental and economic consequences of tobacco consumption and exposure to tobacco smoke.

(Department of Health and Aging website)  With the growing awareness of people today about health and fitness and the general leaning toward healthy food, drinks and habits, the treaty’s prospects of fulfilling its goals are bright. Starting with just 40 participating countries, the alliance for the Convention is now composed of 168 countries.  As of January 8, 2008, the USA is among the 25 “countries that have signed but have not yet ratified.”  (FCTC website)

Chapter VIII, Questions #1-3 & 5

Question #1

The jury awarded punitive charges against Ford because even if Ford lacked the “malice” literally required by the California Punitive Damages Statute as basis for such charges, numerous California cases already have interpreted the term “malice” to include conduct that is indicative of a conscious disregard of the probability that the actor’s conduct will result in injury to others.

On the basis that the prevailing criminal law and the business standards set for manufacturing companies do not effectively deter them from producing and marketing products that turn out to be defective, it is better that the punitive damages granted to the victim be a substantive and sufficient amount to totally discourage such malpractices.

Punitive damages will have to be paid by Smith & Nephew to Green for manufacturing and selling defective and unreasonably dangerous gloves without adequate testing and watching out for any adverse effect that they may trigger and for any form of allergies that they may cause.  On the other hand, had Smith & Nephew expressly indicated on the packaging of their product that they will not be responsible for allergic reactions of clients to their manufactured gloves, then they could have used such argument against having to pay damages.

Question #2

Assuming that I am a safety engineer at Ford consulted as to the wisdom of adding $11 to the cost of manufacturing the Pinto, I would recommend that the additional cost be incurred to make all the Pinto units available for sale truly safe.  The cost of so many accidents that Ford-users would be involved in is not to be compared with the total additional cost to be incurred instead.  Lives of clients will be at stake and Ford will stand to totally lose its share in the market and the people’s high regard for it as a pioneer in the automobile industry.  Those consequences are far more damaging than the computed incremental costs to be incurred.

Question #3

Meting out criminal sentences for those three Ford top management guys is not recommended since there was never a concretely clear and malicious intent on their part to put lives of Pinto-users at stake.  On the other hand, doing so would effectively bring home to other car manufacturers the importance of implementing total quality and safety assurance procedures for all the units they manufacture and sell.

Having to pay punitive damages that turn out to be significantly greater than expected is sufficient punishment for the three Ford bosses.  On top of the unexpected additional costs incurred by the company, there is the inflicted dent on the company’s image which as well constitutes a negative impact on the company’s performance in the industry.  However, even substantial punitive damages might not bring back to good form and perfect health the victimized Pinto-users, more so if they were seriously injured.

At the same time, even the same substantial punitive damages might not sufficiently teach the Ford bosses the lessons they need to learn.  For one, as top management people, they should be ready to do plenty of routine checks and to be responsible for the overall mistakes made by the company’s middle management and employees. Being at the top also means having to be involved in the company affairs at the lower part of the corporate ladder.

Question #5

The now-defunct SabreTech was charged by the Florida prosecutors with third-degree murder and manslaughter in July 1999.  A 24-count federal indictment also charged the company, one of its vice-presidents and two of its mechanics with various offenses ranging from giving false statements to investigators to placing a destructive device on a civil aircraft.  SabreTech workers were as well indicted for improperly loading hazardous oxygen generators on board a ValuJet DC-9.  The place crashed in the Everglades in May 1996 after the canisters ignited during the flight.  All 110 people aboard the plane were killed. (CNN website)

Three years after the crash, SabreTech has been out of business, while ValuJet continues to operate only through its merger with AirTran, its fellow discount carrier.  SabreTech is still contesting the penalty recommended by federal regulators – a fine amounting to $2.25million. (CNN website)

Other companies that were as well implicated in criminal charges in court that involved any one of its officers or employees include Enron which in 2006 saw its executives sent to jail for their roles in the corporate scandal that rocked the US economy and caused the bourses worldwide to  take a dive. (ECT News website)

Chapter IX, Questions #1-5

Question #1

The three essential requirements of the Copyright Act are as follows:

a)      The work must demonstrate originality;

b)      Production must be by a clearly defined “author”; and,

c)      The work must be expressed through a fixed and tangible medium.

The Song of Joy of the Ami people fails each requirement.  As stated in the case, the song falls short of the applicable standard though it is clear that a work only needs to show a minimum amount of creativity to be original.  Secondly, the work cannot be considered as having been independently created by the author.  The clearly defined author of the song can be traced to the Ami people of long ago.  Presently, Lifvon cannot claim to have composed the song. The fact is that he was not the one who created it independently. As it is, therefore, the song can be rightfully claimed by not one individual person. It is the song of the Ami community, so the entire lot will have to take credit – the present generation and past ones.

The third requirement – the fixed and tangible medium for the song - is not met, either.  For how can you encapsulate in precise and concrete form the indigenous notion of creation, which totally precludes the originality that existing copyright laws are designed to protect and guard?  Thus, for these given reasons, copyright as we know it just does not apply to the Song of Joy of the Ami people.

Question #2

Based on how the current laws governing copyright will never apply to the music of the Ami people, the author in her case contends that a group rights model of ownership of intangible property will have to be established and recognized by law so as to adequately protect the works of indigenous peoples from an ever-encroaching dominant society.

Question #3

The communitarian theory aptly supports the legal protection of tribal cultural property.  As explained in the book, this theory contends that community is valuable not merely as a means to the protection of individual rights, but also as a positive human good.  This can be fully achieved only within a society whose members recognize a reciprocal obligation to act always for the welfare of the entire community.  The Ami people comprise a community whose members are bonded together for life.  They stay together as a community, they share the same history and have the duties to protect and pass on the same tradition and cultural properties  - songs, poems, stories and to top it all, the magic of their way of delivering them to their listeners.

Question #4

The system to be set up to fairly compensate indigenous people whenever their culture became the basis for a new work of art will be designed as follows:

Lifvon Guo, as the Ami tribal elder, will be the designated leader to represent the Ami people to third parties or the outside world;  as such, Lifvon will exercise transparency and caution knowing that the Ami people trust him. The Ami tribe will have to set up a system for taking in engagements for singing and similar shows that they have to do as the current generation of their tribe.

All equivalent talent fees, ticket sale shares, engagement fees and any other income generated from any of the works of art of their tribe will be pooled as one account belonging to the entire group. The amounts that will be taken from the pooled fund will have to be made known to all so that the planned transparency will be in place.

The group should push for ways to have an equivalent of copyrights – which the group cannot acquire – for all the musical and literary pieces belonging to their tribe.

Whenever they do shows and other kinds of engagements, they should strictly forbid the recording of their songs so that their exclusive rights to such musical pieces will be safeguarded. They should promote their ancestral heritage for their tribe Ami, their music and their other works of art to be made known and appreciated by more people – in their country and beyond. Question #5

The distortion that occurs in “borrowing” indigenous work is akin to stealing something of great value.  In a way, it is like pirating a movie record or a song track – only the indigenous work protected and handed over by the Ami people from generation to generation is far more precious and important.  Some people fail to appreciate how much meaning there can be in works of arts that come from centuries ago, but such pieces contain the rich culture, the traditions and the legacy of the Ami tribe to the world.  They ought to share it and do more educational shows.  In the process, people watching and listening to them will get to know them.  The Ami tribe can gradually be more appreciated and understood.

It is sad that their song has landed in the theme for the Olympics without them having received any recognition.  Such an act of disrespect to the Ami people should not be repeated.

REFERENCE:

Halbert and Ingulli; Law & Ethics in the Business Environment 5th Edition.

Environment News Service website (www.ens-newswire.com)

Department of Health and Aging website (health.gov.au)

Framework Convention on Tobacco Control website (www.fctc.org)

CNN News website (www.cnn.con)

ECT News website (www.ectnews.com)