DEVELOPMENT, CULTURAL SELF-DETERMINATION AND THE WTO: DEVELOPMENT, CULTURAL SELF-DETERMINATION AND THE WTO Professor Fiona Macmillan Birkbeck, University of London


The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions: The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions Being aware that cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples, and nations …


Agreement Establishing the WTO: Agreement Establishing the WTO Recognizing that their relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development …


Cultural Diversity/Self Determination as a (Human) Right?: Cultural Diversity/Self Determination as a (Human) Right? CCPR Article 1.1: All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.


Slide5: CCPR, Article 19: Everyone shall have the right to hold opinions without interference. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.


Slide6: CCPR, Article 27: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their religion, or to use their own language.


Slide7: CESCR, Article 15.1: The States Parties to the present Covenant recognize the right of everyone: To take part in cultural life; … To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.


Slide8: CESCR, Article 15.3: The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.


UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions: UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions Affirming that cultural diversity is a defining characteristic of humanity, Conscious that cultural diversity forms a common heritage of humanity and should be cherished and preserved for the benefit of all, Being aware that cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples, and nations,


Slide10: Recalling that cultural diversity, flourishing within a framework of democracy, tolerance, social justice and mutual respect between peoples and cultures, is indispensable for peace and security at the local, national and international levels, Celebrating, the importance of cultural diversity for the full realization of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and in other universally recognized instruments,


UNESCO Convention, Article 2.1: UNESCO Convention, Article 2.1 Principles of respect for human rights and fundamental freedoms: Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof.


Copyright and Culture: Copyright and Culture Copyright law: Alienability Duration Horizontal expansion Vertical expansion Weakening of fair dealing/fair use rights Development of associated rights, eg anti-circumvention right


Slide13: Market for Cultural Products: Internationally harmonized rights Multinational actors Horizontal integration Vertical integration Merger of ownership in rights over content and rights over technology Concentration


Slide14: Significance of Private Power: Cultural filtering Homogenisation Repression of free speech Loss of the intellectual commons Impact on creativity Cultural domination and the failure of subversion Destruction of the dialogical relationship between the individual and society


Copyright, Culture and the WTO TRIPs Agreement: Copyright, Culture and the WTO TRIPs Agreement Strengthens some aspects of copyright Use of WTO enforcement mechanism Uniform base for the negotiation of bilateral investment treaties Reifies intellectual property rights as trade or investment rights Results in the enforcement of intellectual rights by trade experts, not intellectual property experts


The Rights’ Clash?: The Rights’ Clash? Normative questions: Does free trade promote cultural diversity? Does copyright promote cultural diversity? Formal legal issues: UNESCO Convention, Art 20.2 Systemic governance