COPYRIGHT, CULTURAL DIVERSITY AND THE WTO

Professor Fiona Macmillan

Birkbeck, University of London

OVERVIEW

1. Cultural diversity as a (human) right?

2. The concept of “culture”

3. Copyright and culture

4. Copyright, culture and the WTO TRIPs Agreement

5. The Rights’ Clash?

1. Cultural Diversity as a (Human) Right?

CCPR Article 1.1:All peoples have the right of self-

determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

CCPR, Article 19:1. Everyone shall have the right to hold

opinions without interference.2. Everyone shall have the right to

freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

CCPR, Article 27:In those States in which ethnic,

religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their religion, or to use their own language.

CESCR, Article 15.1:The States Parties to the present Covenant

recognize the right of everyone:(a) To take part in cultural life;(b) …(c) To benefit from the protection of the

moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

CESCR, Article 15.3:

The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

UNESCO Convention on the Protection and Promotion of the Diversity of Cultural ExpressionsAffirming that cultural diversity is a defining

characteristic of humanity,Conscious that cultural diversity forms a

common heritage of humanity and should be cherished and preserved for the benefit of all,

Being aware that cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples, and nations,

Recalling that cultural diversity, flourishing within a framework of democracy, tolerance, social justice and mutual respect between peoples and cultures, is indispensable for peace and security at the local, national and international levels,

Celebrating, the importance of cultural diversity for the full realization of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and in other universally recognized instruments,

2. The Concept of “Culture”

UNESCO CONVENTION, Art 4:“cultural diversity” is “the manifold ways in

which cultures and groups and societies find expression”, including “diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used”

Art 4 (cont)“cultural activities, goods and services …

embody or convey cultural expressions, irrespective of the commercial value they may have. Cultural activities may be an end in themselves, or they may contribute to the production of cultural goods and services”;

“cultural industries” produce and distribute cultural goods and services.

3. Copyright and Culture

Copyright law:AlienabilityDurationHorizontal expansionVertical expansionWeakening of fair dealing/fair use rightsDevelopment of associated rights, eg anti-

circumvention right

Market for Cultural Products:Internationally harmonized rightsMultinational actorsHorizontal integrationVertical integrationMerger of ownership in rights over content

and rights over technologyConcentration

Significance of Private Power:Cultural filteringHomogenisationRepression of free speechLoss of the intellectual commons

Impact on creativityCultural domination and the failure of

subversionDestruction of the dialogical relationship

between the individual and society

Walt Disney Prods v Air Pirates, 581 F 2d 751 (9th Cir, 1978), cert denied, 439 US 1132 (1979)

4. Copyright, Culture and the WTO TRIPs Agreement

Strengthens some aspects of copyrightUse of WTO enforcement mechanismUniform base for the negotiation of

bilateral investment treatiesReifies intellectual property rights as trade

rights, or even investment rights

5. The Rights’ Clash?

Normative questions:Does free trade promote cultural diversity?Does copyright promote cultural diversity?

Formal legal issues:Impact of intellectual property: cf Convention on

Biological Diversity, Art 16.5UNESCO Convention, Art 20.2

Systemic governance/political issues