Tony Bennett, Differing diversities - Council of Europe

Reasearch position paper 5preservation of their cultures, since knowledge of the natural environment is anintegral part of their values and way of life. 1 In an interesting response to the legalforce of trademarks, some North American First Nations peoples have attemptedto use trademark principles to further their cultural interests, by claiming trademarkstatus for certain traditional artistic designs. 2Notwithstanding these examples, it is the law of copyright which continues todominate the legal treatment of culture. Copyright remains the primary focus ofgroups who wish to make use of intellectual property principles for the promotionof their cultural interests. Accordingly, this analysis of the cultural diversity implicationsof intellectual property law will concentrate on copyright law.Copyright accomplishes three basic functions in the cultural domain. First, itmakes the commercialisation of cultural activities possible. 3 Secondly, it attemptsto create a system of economic and non-economic incentives to encourage artisticand intellectual work. 4 Thirdly and finally, it may be argued that copyright providesa legal framework for the expression of the role of art and artists in society.It is widely recognised that copyright, through the variety of regulatory functionswhich it fulfils, has the potential to serve as a valuable instrument of cultural policy.Indeed, copyright law is commonly used to promote culture in a variety of differentcultural settings, including not only industrialised countries, but also,diverse developing countries and ex-socialist, “transitional” countries. 5 It is interestingto note that copyright is often implemented in the most expansive and originalways by the legislators and judges of developing countries. 6 The special concernsof these countries about the preservation of cultural heritage may account fortheir determined exploration of copyright’s cultural potential. 7__________1. For an interesting consideration of the issues involved, with particular attention to the relationshipbetween intellectual property rights and the Convention on Biological Diversity of 1992, see Coombe,1998. Tunney (1998: 336) also draws attention to this issue.2. See Tunney, 1998: 336-337. He emphasises the traditional importance of names in indigenous cultures,and the peculiar negative consequences which accordingly flow from their appropriation andmisappropriation. For a concise consideration of these issues in relation to Canada’s First Nations peoples,see Vaver, 1997: 280-284.3. See Ploman and Hamilton, 1980: 1. They aptly observe that “copyright is used as a legal mechanismfor the ordering of social and cultural life, or, put another way, copyright is one method for linking theworld of ideas to the world of commerce.”4. Vaver (1997: 1-13) discusses the justifications which are most commonly put forward for intellectualproperty law, including the idea of incentives for creative activity. He points out that many of thesearguments in favour of intellectual property rights tend to be dubious from an empirical point of view.See also Reichman, 1996: 642-645; he argues that copyright is properly understood as one element ofa more comprehensive system of cultural policy, and that, “the limits of cultural policy must be takeninto account in any effort to expand the rewards and benefits flowing from the exclusive rights thatcopyright law bestows on authors and artists.” (ibid.: 644).5. For example, Ploman and Hamilton (1980: 29-30) draw attention to the cultural policies whichdeveloping countries have attempted to pursue through copyright. They also discuss approaches tocopyright in eastern European countries prior to the fall of Communism (ibid.: 24-29). Ex-socialistcountries now confront the peculiar difficulty of moving from a socialist to a democratic conception ofauthors’ rights in their copyright legislation.6. India provides an interesting example. For a discussion of some current copyright cases in India,with a detailed study of those involving moral rights, see Dine, 1995.7. Ploman and Hamilton (1980: 207-208) draw attention to the wide acceptance of international copyrightby developing countries, and point out that, in view of the fact that intellectual property systemsoriginate in western culture, this is a “curious” feature of international copyright law.137