Tony Bennett, Differing diversities - Council of Europe

Reasearch position paper 5norms throughout the world. However, TRIPs generally reflects the intellectualproperty standards of the world’s most industrialised countries. In the industrialisedworld, the agreement is expected to set the stage for still more sophisticatedand comprehensive measures for the protection of intellectual property, particularlyin response to the rapid developments in high technology. 1 In contrast, theTRIPs Agreement is expected to necessitate profound legislative and administrativechanges in developing countries and in the “transitional” countries of easternEurope, regions of the world which have traditionally espoused unconventionalviews of intellectual property law and policy in order to promote their uniquesocial values and needs. 2Legal scholars have been careful to point out that TRIPs may prove to have majorrepercussions for national sovereignty over intellectual property policy in bothindustrialised and developing countries. The structural rigour and rigidity of theTRIPs framework suggest that the manipulation of intellectual property law bystates to meet independent objectives of cultural policy will become increasinglydifficult within the WTO. The comprehensiveness of TRIPs intellectual propertystandards, and the narrowness with which WTO administrators are likely to construethem, act as strong restraints on the independent development of nationalintellectual property norms. In particular, dispute settlement at the WTO suggeststhat the Dispute Settlement Body is intent on pursuing a legalistic, technicallyminded, and politically cautious approach to implementing the agreement. Thefirst decision on TRIPs – a major ruling on an intensely controversial disputebetween the United States and India regarding the pharmaceutical patent provisions– was decided against India. The terms of the decision suggest that the scopefor adapting TRIPs to varying national needs and policies, even if they potentiallyraise humanitarian concerns, may be quite limited. 3Implications of copyright concepts for cultural policyThe TRIPs Agreement is generally perceived to bring a new degree of uniformityto copyright laws around the world. A number of scholars who are interested ininvestigating the interaction of law and culture point out that the TRIPsAgreement not only operates to create legal homogeneity, but that it may ultimatelyentail the imposition of a monolithic vision of culture on member states.By defining copyright in terms which are both comprehensive and stringent,TRIPs effectively determines which forms of cultural expression will be eligiblefor copyright protection, as well as the nature and standard of protectionprovided.__________1. See Caviedes, 1998: 227-229.2. Caviedes, ibid. For a summary of the current status of the modernisation of intellectual property law ineastern Europe, see Lewinski, 1997. See also Dietz, 1996, who links contemporary changes to the previousintellectual property regimes, and Ficsor, 1983, who describes the situation of copyright under socialism.3. Adelman and Baldia (1996) provide a summary of the case. For a more detailed analysis of the socialimplications of liberalisation in India’s pharmaceutical industry, see Henderson, 1997.141