Tony Bennett, Differing diversities - Council of Europe

Differing diversitiesgrowth also exerts intense pressure on the very foundations of copyright law.Technological evolution raises the basic problem of whether copyright conceptswill continue to be viable in the “digital age”. 1Impact of international copyright developments on cultural policyIt is widely accepted in current scholarship that the influence of the TRIPsAgreement on cultural policy will be profound. The TRIPs Agreement supersedesthe Berne Convention for the Protection of Literary and Artistic Works, 2 datingfrom 1886, as the pre-eminent instrument of international copyright law. Themovement from the Berne Convention to TRIPs has signified a fundamental shiftin the character of international copyright law. Although the subdued threat ofcontroversy was undeniably a feature of copyright relations in the Berne Union,international copyright under Berne included various institutional features whichmaintained a degree of flexibility in the system, promoting a relatively durableinternational consensus on copyright issues. 3In contrast, the TRIPs Agreement aims to integrate intellectual property fully intothe general regime governing international trade in goods and services. The creationof an international forum for resolving disputes over intellectual property rights hasserved as a basic means to this end. Disputes related to intellectual property are subjectto adjudication by the general dispute settlement mechanisms of the WTO. 4 TheDispute Settlement Body of the WTO can ultimately compel the enforcement of itsrulings by allowing general trade remedies to be enacted against countries which arein violation of their international obligations in intellectual property matters.These features of the TRIPs intellectual property regime have led commentators toargue that TRIPs introduces an unprecedented degree of coercion into internationalcopyright law. 5 Membership in the WTO is virtually universal, so that theTRIPs Agreement entails the substantial standardisation of intellectual property__________1. Tunney (1998: 335) employs this term, and suggests that it is an apt way of referring to the era, ratherthan to the technology. The expression seems to imply that our age is characterised, not only by the physicalmanifestations of technological development, but by their reflection in our collective psyche. Christie(1995: 526) is also careful to draw a distinction between the experience of information technology to date,and the projected evolution of these technologies in the future. In view of the rapidity of technologicaldevelopment, he argues that it is especially important to be aware of the distinction between present andfuture experiences. Christie observes: “The danger is that the consideration of this issue is taking place inthe context of the immediate past information age, not the new digital era which is just commencing.”2. Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, 828 UNTS 221[hereinafter Berne Convention]. Available from World Wide Web: (30.07.00).3. The Berne Convention is administered by the World Intellectual Property Organisation (WIPO), aspecialist organisation of the United Nations affiliated with Unesco. When it was the main intellectualproperty instrument, developing countries were relatively well-represented in this forum. Moreover,the convention has gone through numerous revision processes, including the addition of the StockholmProtocol, adopted in 1967 to accommodate certain special interests of developing countries. SeeRicketson, 1987: 590-664, for a detailed discussion of the participation of developing countries in theBerne Convention.4. There is also a specialised Council for TRIPs which is potentially involved in dispute settlement. Itsrole, however, is definitely secondary. See Blakeney, 1996: 142-143.5. Dreyfuss and Lowenfeld (1997: 301-302) also point out that the negotiation process of the TRIPsAgreement, dominated by the United States and other highly industrialised countries, and the comprehensivemembership of the WTO are also coercive elements.140