Download Copyright, culture and development

WIPO International Conference on Intellectual Property
and Development
organized by the World Intellectual Property Organization (WIPO)
Geneva, April 7 and 8, 2016
COPYRIGHT, CULTURE AND DEVELOPMENT
Dr. Mihály Ficsor,
Chairman, Central and Eastern European Copyright Alliance (CEECA),
former Assistant Director General of WIPO
I. INTRODUCTION:
THE CONCEPT OF CULTURE
RELEVANT FOR COPYRIGHT
M. Ficsor, WIPO conference, April 7-8, 2016
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Examples of broader concepts of culture
Cambridge English Dictionary: "the way of life, especially the general customs and
beliefs, of a particular group of people at a particular time.”
Oxford Advanced Learner’s Dictionary: „the customs and beliefs, art, way of life and
social organization of a particular country or group”.
Merriam-Webster online Dictionary:
a : the integrated pattern of human knowledge, belief, and behavior that depends
upon the capacity for learning and transmitting knowledge to succeeding generations
b : the customary beliefs, social forms, and material traits of a racial, religious, or
social group;
c : the set of shared attitudes, values, goals, and practices that characterizes an
institution or organization…
Dictionary.com: „the sum total of ways of living built up by a group of
human beings and transmitted from one generation to another”.
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Examples of narrower concepts of culture
When we were working on the Model Provisions on the protection of expressions of
folklore – which was adopted by a WIPO-UNESCO Committee of Governmental
Experts chaired by me in Geneva in June 1982 – quite a lot of time was used in the
preparatory work on the question of what kind of concept of „culture” should be used
as a basis. Finally, we chose a narrower definition (Article 2; see next slide).
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Examples of narrower concepts of culture
(cultural expressions)
For the purposes of this [law], "expressions of folklore" means productions consisting
of characteristic elements of the traditional artistic heritage developed and
maintained by a community of [name of the country] or by individuals reflecting the
traditional artistic expectations of such a community, in particular:
(i) verbal expressions, such as folk tales, folk poetry and riddles;
(ii) musical expressions, such as folk songs and instrumental music;
(iii) expressions by action, such as folk dances, plays and artistic forms or rituals;
whether or not reduced to a material form; and
(iv) tangible expressions, such as:
(a) productions of folk art, in particular, drawings, paintings, carvings, sculptures,
pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving,
needlework, textiles, carpets, costumes;
(b) musical instruments;
[(c) architectural forms]. (Emphasis added.)
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Examples of narrower concepts of culture
(cultural expressions)
Similar discussions took place in the Working Group - co-chaired by us with Carlos
Moneta, an Argentine economist - which in 2004 and 2005, prepared the UNESCO
Convention on the Protection and Promotion of Diversity of Cultural Expressions
(adopted in October 2005 and entered into force in 2007;currently with 140
Contracting Parties - including the EU). Article 4 of the Convention contains the
following definitons:
• “Cultural content” refers to the symbolic meaning, artistic dimension and cultural
values that originate from or express cultural identities.
• “Cultural expressions” are those expressions that result from the creativity of
individuals, groups and societies, and that have cultural content.
• “Cultural activities, goods and services” refers to those activities, goods and
services, which at the time they are considered as a specific attribute, use or
purpose, embody or convey cultural expressions, irrespective of the commercial
value they may have. Cultural activities may be an end in themselves, or they may
contribute to the production of cultural goods and services. (Emphasis added.)
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Examples of narrower concepts of culture
(cultural expressions)
The definition of „traditional cultural expressions” in document
WIPO/GRTKF/IC/27/5 of the Intergovernmental Committee on Intellectual Property
and Genetic Resources, Traditional Knowledge and Folklore („The protection of
traditional cultural expressions: Draft articles”), in key aspects, is similar to the
definition of „expressions of folklore” in the 1982 WIPO-UNESCO Model Provisions:
”1. Traditional cultural expressions are any form of [artistic and literary]
expression, tangible and/or intangible, or a combination thereof,
Alternative 1: in which traditional culture [and knowledge] are [embodied]
Alternative 2: which are [indicative] of traditional culture [and knowledge]
which is intergenerational/from generation to generation and between
generations, including, but not limited to: phonetic and verbal expressions,
[musical and sound expressions], [expressions by action], tangible expressions,
[and adaptations of these expressions].” (Emphasis added.)
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Culture and copyright
•
Culture did exist much before the birth of copyright.
•
Copyright also protects works which are not necessarily covered either by the
broader or by the narrower concept of „culture” or „cultural expressions” (such as
computer programs which have utilitarian objectives and „talk” to machines) or
are of a double nature relevant for both the markets cultural goods and the
market of utilitarian goods (such as works of applied art/industrial designs).
•
Cultural expressions are created also by those for whom copyright protection – in
particular the economic rights protected by it – is not an indispensable criterion.
•
However, for creation and production of mainstream cultural goods and services,
efficient protection and enforcement of copyright is necessary also in the XXIst
century. Culture may not exist and develop without this.
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The role of different categories of works
from the viewpoint of development
•
•
•
•
There are certain categories of works protected by copyright which – due to their
objectives and way of functioning – are relevant, directly or indirectly from the
viewpoint of transfer of technology, such as computer programs, works of applied
art/industrial designs, „maps, plans, sketches and three-dimensional works relative
to… architecture or science” or certain databases.
Other categories of works serve important development purposes through
education and research, such as textbooks, lectures, other teaching materials,
books and articles on scientific and technical topics.
The access to a very broad category of other works are needed for creating
favorable political, cultural and social environment for development (for access
to information, for participating in political and cultural life, etc.).
Differing conditions in Article III(3) of the Appendix to the Berne Convention on
reprint compulsory licenses (i) for works of natural and physical sciences and of
technology; (ii) for works of fiction, poetry, drama and music, and for art books;
(iii) for other categories of works not covered by (i) or (ii).
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II.GENERAL PRINCIPLES:
COPYRIGHT SHOULD FUNCTION
AS „ADVERTISED”
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Creator-centric protection
General principles to keep in mind in order to maintain (or restore) the
credibility and public acceptance of copyright and to apply it effectively for
economic, social and cultural development:
1. Copyright should function as „advertised” in the sense that it is supposed
to serve economic, social and cultural development through granting moral
and economic rights to human creators: authors and performers. It should
also be suitable to protect the investments into cultural productions and
services – but this should be in accordance with, and subject to, the abovementioned basic objective.
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Copyright, cultural diversity and
development
2. This „advertised” function of copyright should prevail not only in certain
countries, but in all countries of the world in order to serve development
and to protect and promote cultural diversity.
Universal Declaration on the Protection of Cultural Diversity of 2001:
„Article 3 – Cultural diversity as a factor in development
Cultural diversity widens the range of options open to everyone; it is one
of the roots of development, understood not simply in terms of
economic growth, but also as a means to achieve a more satisfactory
intellectual, emotional, moral and spiritual existence.”
Preamble of the UNESCO Convention:
„cultural activities, goods and services have both an economic and a
cultural nature, because they convey identities, values and meanings,
and must therefore not be treated as solely having commercial value”.
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Copyright, culture and access
3. Copyright should also function as „advertised” in the sense that it
guarantees adequate access to protected creations necessary for
development purposes and that it makes possible active participation of
people in political and cultural life.
• For access, there is a need for works and other productions to get access
to – and this requires adequate protection and enforcement of copyright.
• For due access, there is also a need for well-balanced exceptions to, and
limitations, of copyright.
• Recently, for the implementation of the WIPO Development Agenda, it
seems it has been a priority aspect to deal with exceptions and
limitations that are particularly important for development purposes.
Therefore, first this topic is covered. However, as discussed below, the
GRULAC proposal submitted in December 2015 has also put in focus the
rights of creators to be more approriately recognized.
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III. EXCEPTIONS AND LIMITATIONS
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Mainstream activities
It is hoped that the current preparatory work in the SCCR will result in
clarifying, in an appropriate instrument, the norms to be applied in the field
of education, library and archive services and also access by persons with
disabilities other than visually impaired and print disabled. In this respect –
and in general regarding the application of exceptions and limitations – the
following specific considerations seem to be necessary, with special
attention to the principles of the WIPO Development Agenda.
• blind, visually impaired, or print disabled
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Academic agenda and
Development Agenda
Practical, effective solutions are needed rather than taking sides in ideologyrooted debates between academics.
•
•
A typical example is the controversy about the application of the “three-step
test”. From the viewpoint of development objectives, it is hardly a relevant issue
whether the three conditions of the test are applied one after the other or
together at the same time, or whether its consideration begins with the first, the
second or the third condition – about which a lot of academic studies have been
published.
What is rather important is that all the three conditions of the test be applied by
duly serving development interests, as stressed in the report of a WTO panel (in
which I happened to be a member): In the application of the test “the goals and
the limitations stated in Articles 7 [of the TRIPS Agreement according to which
the protection and enforcement of intellectual property rights should be
‘conducive to social and economic welfare, and to a balance of rights and
obligations’]… must obviously be borne in mind” (see para. 7.25. of panel report
WT/DS114/R).
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Applying good while waiting for better
The existing possibilities offered by the international treaties for exceptions
and limitations important for public interests and for development should
be fully exploited.
• A good example is the 1982 WIPO Model Provisions on exceptions or
limitations for the visually impaired – adopted by WIPO-UNESCO working
group of governmental experts (of which I happened to be the chairman).
It contained already principles and rules which, to a great extent,
corresponded to the provisions of the Marrakesh Treaty (and to that
extent it was applied in the legislation of a number of countries). Similar
models and national solutions do exist also for other exceptions and
limitations to serve development interests.
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Berne Appendix – out-of-date provisions,
still valid principles and objectives
The Appendix to the Berne Convention – although it has been included by
reference both in the TRIPS Agreement and the WIPO Copyright Treaty (WCT)
– due to the complex procedural rules and the long deadlines , has never
been suitable to fulfill the objective of offering preferential treatment for
developing countries through compulsory translation and reprint licenses for
educational and research purposes. With the spectacular technological
developments, it has lost any real relevance. However, the principles on
which it was based and the objectives it was to serve are still 100% valid. It
would be justified to review how those principles may be applied and how
those objectives may be served in the digital online environment.
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Possible issue-based rather than
sector-wide exceptions and limitations
In the attempt of adopting exceptions and limitations to the digital
environment, specific norms seem to be necessary for such issues important
from the viewpoint of development as distance education, digitization, use
of orphan works, and access to out-of-commerce works.
• The common characteristic of these uses of protected works is that there
are no specific provisions on them in the international treaties.
• To a great extent, the existing international provisions (such as in
particular the three-step test) may offer adequate basis for exceptions
and limitations allowing such uses, but agreement would be necessary for
their interpretation and application, and some new norms might also be
needed.
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No „one-fit-for-all” solutions
Nuanced criteria and rules are needed – and “one-fit-for-all” solutions
should be rejected – in regard
(i) to the differing levels of development and specific needs and
requirements of the various countries;
(ii) to the objectives of the uses of works; whether for more or less direct
development purposes (such as education, research) or for mere
entertainment;
(iii) to the various categories of works relevant for such objectives.
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IV. PROTECTION AND
ENFORCEMENT OF COPYRIGHT
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GRULAC proposal on the status of creators in
regard to digital online uses
As the proposal submitted by the Group of Latin American and Caribbean
Countries (GRULAC) at the December 2015 session of the SCCR has signaled
it, although the projects concentrating on exceptions to and limitations of
copyright serving development interests is a key element of the Development
Agenda, appropriate attention should also be paid to the protection and
enforcement of copyright. In this regard, the following considerations seem
to be justified.
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Policies to encourage national creativity and
develop national cultural industries
In regard to the application of the concepts of trade and competition, it
should be recognized that cultural goods and services are of a specific nature
in that they may be closely linked to the identity of nations, nationalities
and other social groups and are important from the viewpoint of the
protection of cultural diversity. It should be recognized that, on the basis of
its cultural sovereignty, each country is free (i) to apply cultural policies to
encourage creativity of its nationals, (ii) to develop its national cultural
industries, and (iii) to apply measures to guarantee due presence and
representation of national creations in the market of cultural goods and
services.
• These are particularly relevant from the viewpoint of developing
countries.
• See Articles 5 and 6 of the UNESCO Convention on the Protection and
Promotion of the Diversity of Cultural Expressions.
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The role of collective management in the
promotion of national creativity
The application of the principles referred to on the preceding slide is
particularly important for collective management organizations, which
should be regarded not only as “licensing bodies” but also as communities
indispensable for the promotion of national creativity and the protection of
cultural diversity.
• Specific considerations for deductions for national cultural and social
purposes.
• See principle (23) of the WIPO book on „Collective Management of
Copyright and Related Rights” (WIPO publication No. 855(E)):
„authorizing deductions for cultural and social purposes may establish a
favorable basis for the operation of joint management organizations in
an efficient way, as well as for sufficient political support and social
respect for copyright and related rights (in particular in developing and
other ‚net importer’ countries).”
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Traditional cultural expressions
For the preparation of a WIPO instrument to recognize the cultural and
economic value of, and protect, traditional cultural expressions, it should be
taken into account that, in developing countries, contrary to the majority of
industrial countries, this is not only a matter of traditions to preserve and
take care of, but a living form of creativity and a significant asset in the
international cultural market.
• Article 15(4) of the Berne Convention: a cul-de-sac.
• 1982 WIPO-UNESCO Model Provisions on the protection of expressions
of folklore.
• WIPO-UNESCO World Forum on the Protection of Folklore (1997, Phuket,
Thailand).
• Current work on an instrument on the protection of traditional cultural
expressions in the WIPO Intergovernmental Committee on Intellectual
Property and Genetic Resources, Traditional Knowledge and Folklore.
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Special vulnerability of developing countries to
widespread infringements
From the viewpoint of the enforcement of copyright, in particular in the
digital online environment, it should be seen that widespread infringements
may make national creativity and identity of less developed countries
particularly vulnerable, at least in two ways:
(i) the inundation of the cultural market by freely available illegal foreign
products that have already proved to be popular creates brutal unfair
competition to national creators and producers;
(ii) while big multinational companies might easily survive losses in
secondary and “peripheral” cultural markets of less developed countries,
the chances of the usually small- and medium-sized publishers and
producers of the countries concerned to succeed or even survive may
be hopelessly undermined.
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The role of online service providers
The principles and rules established at the beginning of the new Millennium on the
obligations and liability of online service providers and other intermediaries – in view
of new technological and business-method developments – should be reviewed.
Adequate legal and economic consequences should be deduced and applied for
those intermediaries the services of which are not of a mere technical, neutral and
automatic nature, and which obtain significant income by de facto communicating
protected works (at the same time undermining the chance of creators to benefit
from this kind of use of their works).
• Francis Gurry, Director General of WIPO in his famous speech at the „Blue Sky
Conference” in Sidney in 2011: „I believe that the question of… the responsibility
of intermediaries is paramount. The position of intermediaries is key. They are at
once, service providers to, as well as partners, competitors and even clones of
creators, performers and their business associates; hence the difficulty that we
have in coming to a clear position on the role of intermediaries.” (Emphasis
added.)
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Key points of the GRULAC proposal
The contractual system of certain “legal” online services should be also reviewed and
where necessary, through legislative and administrative measures, corrected to
guarantee more judicious benefit for authors and performers in accordance – as
suggested in the above-mentioned GRULAC proposal.
• GRULAC suggests, inter alia, to be discussed in the SCCR:
- Analysis and discussion of the role of companies and corporations that make
use of protected works in the digital environment and their way of action,
including the verification of the level of transparency on business and the
proportions of copyright and related rights payment to the multiple rights
holders.
- Building consensus on the management of copyright in the digital
environment, in order to deal with the problems associated to this matter, from
the low payment of authors and artists to the limitations and exceptions to
copyrights in the digital environment.
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THANK YOU FOR
YOUR ATTENTION
e-mail: ceeca@t-online
website: [email protected]
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