Tony Bennett, Differing diversities - Council of Europe

Differing diversitiesAt a deeper level, the concepts underlying the copyright standards in the TRIPsAgreement reflect the cultural and commercial concerns of western European countriesand the United States. Scholarship in this area has attempted to develop a historicallyand culturally informed vision of copyright, which transcends the technicalaspects of this field and provides greater insight into its cultural implications. 1Inquiries into the broader cultural effects of copyright have yielded a theoreticallyrigorous scholarship surrounding a number of the central tenets of copyright law. 2Current research suggests that the international copyright regime, to a great extent,is based on culturally specific and historically precise ideas about creativity, creativeworks, and the economic role of culture. The most powerful cultural normsunderlying international copyright law include a model of creativity based on theidentity of the creative author as an individual, independent genius, and a conceptionof the creative work as an original manifestation of the personality of its author.Many scholars who have attempted to clarify the conceptual foundations of copyrightlaw point out that this established vision of culture and creativity continuesto inform international developments in the field. However, they argue that thisframework for copyright protection may not be conceptually sound when it isapplied to cultural contexts which diverge significantly from the western Europeanmodel. A strongly individualistic conception of creativity may not be relevant tocultures which place a higher value on group or communal creation, or locate thework of individual authors within a strong, community tradition of educatedunderstanding and appreciation. 3 They may also be difficult to reconcile with traditionswhich do not accord primary importance to the identity of the author, orinclude a particular wealth of anonymous works of “folklore”. 4 Moreover, the professionaland commercial orientation of copyright may not be compatible with avision of culture that emphasises its independence from commercial concerns. 5These kinds of considerations often arise in relation to aboriginal cultures, andthey may also be at issue in developing countries. 6 Clearly, cultural policies whichseek to promote the interests of diverse minority cultures – whether they are subnationalgroups functioning within the existing ambit of copyright law, or national__________1. These two extreme positions are pointed out by Barron (1998: 43-45); she argues in favour of a perspectivebased on “overlap” and “intersection,” rather than “a single dynamic driving legal and aestheticdevelopment alike.”2. For example, see Foucault, 1984: 101, a seminal and widely-influential work by the noted philosopher;Woodmansee, 1984, a pioneering historical study of authorship in the context of the development ofGerman Romanticism; and Jaszi, 1992: 294-299, who draws together studies of Romantic authorship invarious European contexts to inform his discussion of current American copyright law.3. Ploman and Hamilton (1980: 4-5) cite the well-known example of Bali. The individualistic orientationof copyright law may also be inadequate to accommodate the current role of corporate authorship inhighly industrialised countries. See Jaszi, 1992: 301-302, who discusses copyright in terms of the“realities of contemporary polyvocal writing practice – which increasingly is collective, corporate, andcollaborative”.4. For example, see Pandit, 1977, who points out that, in Indian tradition, art ultimately aims to liberatethe individual from the limitations of the ego, with the implication that anonymity is the highest form ofcreative identity. It should be noted that the term “folklore” is somewhat controversial, but remains widelyused in copyright literature: see Masouyé, 1983; Berryman, 1994: 309-333.5. See Alford, 1993, who makes these observations about Chinese tradition.6. Sayre (1986: 875) and Prott and O’Keefe (1984: 14) point out the contribution of deteriorating traditionalvalues in developing countries to the impoverishment of culture in the developing world.142