Development, cultural self-determination and the World Trade Organization

This chapter considers the relationship between the international legal regime established under the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) and the international copyright system, which is embedded in the law of the WTO by virtue of its Agreement on Trade-Related Intellectual Property Rights (TRIPs Agreement). In order to examine this relationship, the chapter looks at six issues. First, in Section 2 it considers the extent to which international law, both before and after the coming into force of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, confers a “right” to cultural diversity. In this section it is argued that the UNESCO Convention may be regarded as articulating and building upon rights previously laid down in the human rights covenants to the Charter of the United Nations. A particular concern of the chapter becomes, therefore, whether the relationship between the UNESCO Convention and the international copyright system is likely to show any marked differences from the relationship that has existed to date between the human rights covenants and the copyright system. As a basis for arguing that some relationship should exist between the UNESCO Convention and the copyright system, Section 3 offers some views on the extent to which the concept of culture in the Convention interacts with the concept of culture with which copyright is concerned. The chapter then turns to a more detailed analysis of the relationship between copyright and cultural diversity in Section 4, followed in Section 5 by a consideration of the extent to which the entrenching of the international copyright system in the WTO has affected this relationship. Section 6 broadens this consideration by arguing that other provisions of WTO law exacerbate the negative effects of the international copyright system on cultural diversity. In Section 7, the chapter comments upon the extent to which there is a clash between the “right” to cultural diversity, if it exists, and the international copyright system. The chapter concludes with some observations on the significance of this clash in relation to attempts to understand the content of the expressions “development” and “sustainable development” in international law.