Tony Bennett, Differing diversities - Council of Europe

Differing diversitiesNevertheless, the relationship between copyright and culture is inherently complex.It is difficult to arrive at a precise and comprehensive assessment of theimplications of copyright for cultural policy. The historical and cultural conceptsembedded in copyright law may affect cultural diversity policies negatively, bylimiting their responsiveness to the range of international cultural interests whichseek protection. In excluding certain forms of cultural activity, copyright may alsoimplicitly encourage specific forms of cultural development over others.At present, the legal understanding of culture is in flux, while policy makers in thefield attempt to bring about greater clarity and refinement. As this process develops,copyright may have the potential to exercise a decisive influence on the evolutionof social concepts of the creative function and the role of creators in society.An important question remains whether copyright inevitably shares the rigiditythat is typically associated with legal clarity. The “reifying” function of law, whichseeks to make large ideas manageable by defining and limiting their scope, is thevery antithesis of culture. The vastness and complexity of the phenomenon calledculture means that it is associated with diverse values, social systems, histories,ways of life, and beliefs. Culture does not lend itself either to precise definition, orto the development of abstract principles. Attempts to generate cultural policybased on a legally specific definition of culture may not only be destined for practicalfailure, but the ambiguities surrounding the legal concept of culture also suggestthat this approach may present additional dangers for cultural development. 1Current trends in international copyright law lend a degree of urgency to theseissues. The adoption of an Agreement on Trade-Related Aspects of IntellectualProperty Rights (TRIPs) 2 as one of the legal instruments constituting the WorldTrade Organization (WTO) has brought about a fundamental shift in the characterof international copyright law. While a degree of international harmonisation incopyright is generally believed to promote cultural exchange, the TRIPsAgreement moves towards an essentially coercive regime for copyright protection.A country’s failure to observe the copyright standards in TRIPs can lead tothe application of trade-based, economic penalties. This strong movement towardshomogeneity in international copyright principles and standards presents a starkcontrast to the diversity of cultural interests which are increasingly self-aware andeager to assert themselves in the international arena. 3__________1. See McGuigan, 1996: 5-29. McGuigan points out that the notion of cultural policy is itself notimmune to controversy. He emphasises the fundamental difficulty of attempting policy intervention ina sphere which essentially defies regulation, and is potentially hostile to the very concept. McGuigan(ibid.: 6) observes that “the problem is related to the etymological connection between ‘policy’ and‘policing’. ‘Cultural policy’ has deeply entrenched connotations of ‘policing culture’, of treatingculture as though it were a dangerous lawbreaker or, perhaps, a lost child.”2. Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C to the WTOAgreement, 15 April 1994, 33 I.L.M. 1197 (entered into force 1 January 1995) [hereinafter TRIPsAgreement].3. Drahos (1999: 358-365) points to the expansive rhetoric of human rights as one indicator of this phenomenon.He is also careful to draw attention to the potentially counterproductive elements of anoverdeveloped language of human rights: he observes, “The human rights regime continues to expand,so much so that some scholars have called for quality control on the origination of such rights.” (ibid.: 361).138