Tony Bennett, Differing diversities - Council of Europe

Reasearch position paper 5This paper will examine the implications of current international developments inintellectual property law for cultural diversity policies. It will focus on copyright,which is the most powerful and widely accepted legal mechanism for the regulationof culture, providing a summary of research to date on the implications ofcopyright law for cultural diversity. It will go on to identify the key copyright concernswhich policy makers in the area of cultural diversity may ultimately wish toaddress. Addressing these issues may help them to craft cultural diversity policiesthat are effective in the highest possible degree.Existing state of knowledgeCurrent developments in international copyright law have led to intense researchactivity. The relationship between copyright and culture appears to be of particularinterest to legal experts. The preoccupation of copyright scholars with culturalissues has its origins in the rising prominence of cultural industries, and reflectstheir influential role in driving international copyright developments. 1 Scholarlyinterest also reflects a new sensitivity to the cultural potential of current technologies,which have generated new possibilities for culture by contributing novelmeans of creation and original concepts of the creative work to the culturaldomain. 2 At a deeper level, scholars of intellectual property are gradually becomingaware that the international trend towards greater cultural consciousness hasmajor implications for the law of copyright. 3Scholarship on intellectual property law and culture is concentrated in three mainareas of research. First, scholars of law and culture are concerned with the potentialimpact of copyright on culture, leading them to investigate the possibleresponses of cultural policy to these influences. Secondly, the process of examiningthe cultural implications of international copyright law has led to an explorationof the specific effects of copyright concepts on culture, including the waysin which the conceptual framework of copyright law shapes cultural policy.Thirdly, intellectual property scholars are interested in the impact of technologicalprogress on copyright law itself. They point out that technology not only affectscopyright by changing the nature of cultural industries, but that technological__________1. One of the driving forces behind the adoption of the TRIPs Agreement was the economic importanceassumed by cultural industries in the world’s most industrialised economy, the United States. SeeNimmer, 1992, whose discussion particularly emphasises the economic importance of the UnitedStates film industry. Fraser (1996: 311-314) specifically draws attention to the conflict which ultimatelyarose between France and the United States over film, in the course of negotiations for the WTO, andpoints out that this controversy was symptomatic of European ambiguities about the status of culturein international trade. Ambivalence about the incorporation of culture into the WTO arguably reflectstwo competing trends which are prominent in the international arena, where a growing awareness ofthe value of cultural traditions must be reconciled with the unprecedented economic importance of culturalindustries.2. For example, Christie (1995: 525-526) discusses some of the implications of new kinds of works,including “multimedia” and “virtual reality” works, for concepts of authorship in copyright law. Heconcludes that “multimedia” works and user participation in creation suggest that, “a new concept ofauthorship may be required for copyright law in the digital era.”3. For example, see Barron, 1998; Coombe, 1998; and Tunney, 1998; who are in the forefront of thistrend. Fraser (1996) and Drahos (1999) are also interested in this connection, but their perspective isslightly more representative of a traditional intellectual property approach.139