Tony Bennett, Differing diversities - Council of Europe

Differing diversitiesNational sovereigntyThe potential negative effects of the TRIPs system for national sovereignty arewidely addressed in legal scholarship. However, this issue has not been consideredspecifically from the perspective of cultural diversity. In particular, will the internationalisationof intellectual property law and the mechanisms for its implementationmake it possible for groups other than states to assert their interests in intellectualproperty? Research into the possibilities for public participation in theinternational intellectual property systems of TRIPs and the European Union mayprove to be fruitful areas of investigation from the perspective of cultural diversitypolicies. 1A reconsideration of existing copyright controversiesA research focus on the resolution of longstanding controversies in internationalcopyright may be of substantial benefit to cultural diversity. The inclusion of certaintypes of cultural industries in the TRIPs/WTO framework for intellectualproperty protection has been controversial even among highly industrialised countries,particularly in relation to film. 2 The investigation of these cultural exemptions,and how they may be reconciled with overall trends in international traderelations, may provide insights into the process of international cultural exchange.A related area of unresolved controversy concerns the moral rights of authors.Moral rights are controversial at both the international and European levels. Theyhave neither been fully integrated into the TRIPs system nor smoothly harmonisedwithin the European system. A long tradition of scholarship links moral rights tocultural interests. Research into the impact of moral rights on cultural diversity, aswell as the broader implications of moral rights from a commercial and pragmaticperspective, will have important implications for policy development.Limitations of intellectual property conceptsIntellectual property scholars have undertaken detailed studies of the theoreticalfoundations of copyright law. Based on these analyses, a number of them haveconcluded that conventional copyright concepts may be incompatible with culturalchange. In particular, scholars have concentrated on the implications of technologicalchange for culture in the industrialised world. There is a general awarenessthat individualistic assumptions about creative authorship and therelationship of privilege between an author and his work, do not adequatelyaccommodate current social realities in industrialised countries. Joint and corporateauthorship, and the intervention of technology in the creative process, areincreasingly dominant aspects of culture and copyright in these parts of the world. 3__________1. For a discussion of related issues, see Housman, 1994.2. See Fraser, 1996, for a detailed discussion of moral rights and film.3. Jaszi (1992: 301-302), a leading exponent of this view, points out that “the realities of contemporarypolyvocal writing practice – which increasingly is collective, corporate, and collaborative,” is incompatiblewith conventional copyright.148