Transcript Protection of Integrated Circuit Topographies

COPYRIGHT, CULTURAL
DIVERSITY AND THE WTO
Professor Fiona Macmillan
Birkbeck, University of London
OVERVIEW
1.
2.
3.
4.
Cultural diversity as a (human) right?
The concept of “culture”
Copyright and culture
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 selfdetermination. 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 Expressions
Affirming 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:
Alienability
Duration
Horizontal expansion
Vertical expansion
Weakening of fair dealing/fair use rights
Development of associated rights, eg anticircumvention right
Market for Cultural Products:
Internationally harmonized rights
Multinational actors
Horizontal integration
Vertical integration
Merger of ownership in rights over content
and rights over technology
Concentration
Significance of Private Power:
Cultural filtering
Homogenisation
Repression of free speech
Loss of the intellectual commons
Impact on creativity
Cultural domination and the failure of
subversion
Destruction 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 copyright
Use of WTO enforcement mechanism
Uniform base for the negotiation of
bilateral investment treaties
Reifies 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 16.5
UNESCO Convention, Art 20.2
Systemic governance/political issues