Tony Bennett, Differing diversities - Council of Europe

Differing diversitiesallowing their goals to be defined in concrete, precise, and immediate terms, andproviding measures for the enforcement of policy objectives through an administrativeframework. Secondly, the law provides a conceptual framework for theexpression of the values underlying cultural policy. Legislative action has a directimpact on cultural policy; the consequences of legal concepts for the developmentof cultural diversity policies are subtler, but equally powerful.A number of different areas of law impinge upon cultural diversity issues. For example,human rights and constitutional law provide a legal framework for the protectionof basic rights and civil liberties, essential for cultural diversity to flourish.Freedom of speech, thought, association, and creativity are all potentially implicatedin cultural activities. 1 Cultural diversity is also closely connected to issues of minorityrights, such as social attitudes towards immigrants and refugees, or the status ofestablished minority groups. Human rights statutes and constitutional laws are fundamentallyconcerned with the protection of these types of interests. Without thesebasic protections, the maintenance of cultural identity and the promotion of creativeactivity among vulnerable groups would confront serious difficulties, as individualsand communities become potential victims of discrimination.The areas of law which are most directly implicated in cultural diversity policiesare the systems of law which are explicitly concerned with the regulation of cultureitself. These are intellectual property law and cultural property law. Given thecurrent legal climate, the law of intellectual property is by far the more significantof the two domains for cultural diversity policies. At a conceptual level, the broadscope of intellectual property law presents a contrast to cultural property law, as itis concerned with a wide spectrum of cultural activity and is not limited to thematerial manifestations of culture. In pragmatic terms, intellectual property lawenjoys widespread international recognition and acceptance, and it is strengthenedby powerful administrative and enforcement mechanisms at the national and internationallevels. On the other hand, for both technical and political reasons, the lawof cultural property remains a contentious area, and is far from enjoying the powerand prestige of intellectual property law. 2Within the specialised domain of intellectual property rights, patents, trademarks,and copyright all have different kinds of implications for cultural diversity. Forexample, pharmaceutical companies have become increasingly interested inseeking patents for drugs which exploit the traditional knowledge of indigenouspeoples about the medicinal properties of plants. Many indigenous peoples areconcerned about the implications of patenting traditional knowledge for the__________1. The interesting concept of “freedom of creativity” is raised, not surprisingly, in the context of post-Communist Russia, by Rakhmilovich (1996: 129, 133).2. Scholarship on cultural property is centrally preoccupied with the international movement of art andartefacts, which occurs primarily in the context of a highly lucrative, illicit trade. A full considerationof the issues involved in the repatriation of stolen or illegally-exported cultural property is beyond thescope of this paper. For a detailed analysis of the dangers to cultural heritage caused by the illicit movementof cultural objects, see Prott and O’Keefe, 1984: 11-12. Attempts to curb this trade through theadoption of international conventions have been largely unsuccessful, with many scholars generallyattributing their failure to a lack of co operation between wealthy, art-market countries, and poor, artsourcecountries. For example, see Caruthers, 1988: 143; Sayre, 1986: 857, 886-889.136