Creative Economy: A Feasible Development Option

9.3.4 TRIPS AgreementWith respect to the provisions of the TRIPS Agreement,topics relating to the creative economy such as the protectionof traditional knowledge and folklore have not received prominentattention in the WTO Doha Round, where negotiationshave focused on biotechnology and traditional medicines.Undoubtedly, one of the critical issues for the culturaland creative industries is copyrights and neighbouring rights,in particular the need to reinforce domestic copyright legislationand institutions. This topic should remain at the coreof the IPR debate since there is a need to push the boundariesof existing models and explore innovative solutions thatwill maximize the benefit of the creative economy in developingcountries, seeking social inclusion and equitable developmentas a primary objective. Lacunae in the current IPRregimes are being dealt with at the international level byWIPO in the context of its Development Agenda.The work of WIPO is closely interwoven with governmentaland intergovernmental cooperation, including theWIPO agreement with WTO to assist developing countriesin the implementation of the TRIPS Agreement. The challengeof development is compounded by rapid technologicaland scientific progress. WIPO helps countries to identifyand to promote international solutions to the legal andadministrative problems that digital technology poses to thetraditional notions and practices of intellectual property. Tomaximize synergies, a better interface is required betweendevelopment programmes implemented by WIPO for developingcountries and other international organizationsinvolved with intellectual property and economic developmentissues.9.3.5 Implications of regional tradeagreements for creative industriesTrade agreements influence trade flows of culturalgoods and services as a result of the mutual granting ofmost-favoured-nation treatment among signatories, which isthe fundamental principle of trade commitments and commercialrelations among countries.The WTO rules recognize the right of contractingparties to liberalize trade in goods in accordance with ArticleXXIV and the enabling clause of GATT and trade in servicesin accordance with Article V of GATS within the frameworkof economic unions such as the European Union, RTAssuch as ASEAN and MERCOSUR, and FTAs such asNAFTA. WTO has been notified of more than 462 agreementssuch as RTAs and FTA among WTO members. 16 Themain implications of these agreements for creative industriesis that trade flows, i.e., imports and exports of creative industriesand the IPRs, are subject to binding commitments andmultilateral disciplines that might be enforceable by disputesettlement. The cultural exception to audiovisual servicesimplies the non-application of the “once-in-time exception”of most-favoured-nation treatment to audiovisual services,which allowed the concerned countries to exclude audiovisualfrom their schedules of commitments under the GATS inthe commitments appended to the Final Act embodying theresults of the Uruguay Round of Multilateral TradeNegotiations signed in Marrakech in 1994.RTAs such the Andean Community, ASEAN, CARI-COM, the Central American Common Market, theCommon Market for Eastern and Southern Africa, MER-COSUR and SADC have universal coverage and commitmentto full liberalization within a reasonable length of time.These agreements include special provisions for culturaltrade and common disciplines applied to many segments ofcultural industries. FTAs such as CAFTA, NAFTA andbilateral treaties of the United States with Chile have specificprovisions or exclusions in negative lists of some creativeindustries sectors.In addition to specific commitments, members mayalso include additional commitments. This may allow thecountries to undertake commitments on cultural services andaudiovisual services under transparent conditions of regulations,standards, licensing and administrative procedures.These additional commitments requires incumbent countriesto update domestic regulations on creative industries byimplementing non-“trade distorting” standards, which constitutenon-tariff measures such as licensing and packagingrequirements, and administrative procedures that nullify orimpair a specific commitment.9The international dimension of creative-industries policy16 Some 462 RTAs have been notified to the GATT/WTO up to February 2010. Of these, 345 RTAs were notified under Article XXIV of the GATT 1947 or GATT 1994; 31under the Enabling Clause; and 86 under Article V of the GATS. At that same date, 271 agreements were in force (see http://www.wto.org).CREATIVE ECONOMY REPORT 2010241