Tony Bennett, Differing diversities - Council of Europe

Reasearch position paper 5administrations attempting to implement appropriate copyright principles – mustcome to grips with these concerns.It is interesting to note that a pioneering examination of some of these issues hasoccurred in the court systems of some industrialised countries, where aboriginalpeoples have attempted to vindicate their cultural values through intellectual propertyprinciples. Notably, Australia’s Aborigines have brought a number of landmarkcultural claims before the Australian courts. To date, the most sophisticatedof these judgements demonstrate an encouraging appreciation of the complex culturalperspectives presented by these non-western cultures. At the same time, theyhave been largely unable to provide an indication of how western courts may ultimatelybe able to reconcile the disparate cultural interests at stake. 1A small group of scholars has attempted to overcome the potential limitations ofcopyright theory by choosing to deal with the implications of copyright for culturalpolicy in more direct and pragmatic terms. For example, a variety of suggestionshas been made for extending copyright protection to works of group authorship,and anonymous works of “folklore”. Research in this area centres on thecultural implications of moral rights, a special branch of copyright law which isunique in protecting the non-commercial interests of authors in their work. 2Moral rights are a product of continental European theories of creative authorshipas a phenomenon based on the original genius of individuals, and as such, theysuffer from the same theoretical limitations which generally affect western copyrightlaw. However, moral rights also create a privileged legal relationshipbetween an author and his work, allowing the author to insist on appropriate attributionof his work, and to sue for the protection of the integrity of his work. Often,these rights persist even after the author has given up his commercial copyright,and, in some jurisdictions, they may continue to be exercised indefinitely after hisdeath by his descendants. 3 The scope and potential power of these rights has led tomuch scholarly interest in their practical benefits for culture. Although it remainsin its early stages, this scholarship raises the possibility that the protection ofmoral rights may make a valuable contribution to cultural diversity policies whichtranscends the theoretically individualistic origins of these rights.Cultural diversity policies and the regulation of technologyCopyright concepts are not only challenged by the diversity of cultural interests inthe international arena, but, to an increasing extent, they are also broughtinto question by technological developments. 4 To date, intellectual propertyscholarship has identified two kinds of problems which technology presents for__________1. See the summary of cases in Blakeney, 1995, and Barron’s detailed analysis of the Yumbulul case(1998: 45-87).2. For example, Berryman (1994: 310-321) undertakes a detailed examination of the potential contributionof moral rights to folklore.3. France, and countries with French-influenced intellectual property systems, provides perpetual protectionfor moral rights: see Ricketson, 1987: paragraph. 8.105, note 510.4. Tunney (1998: 335) notes the parallels between the “oldest,” from aboriginal traditions, and “newest,”based on technological development, visions of culture.143