Christoph B. Graber

Using Human Rights to Tackle Fragmentation in the Field of Traditional Cultural Expressions: An Institutional Approach

Attempts to protect traditional cultural expressions are fragmented because of incoherency between competing regimes, such as WIPO, UNESCO and the WTO, and due to a fundamental clash between traditional cultures and global communication systems, such as the law or the economy. This chapter addresses how human rights could be used to create a more coherent methodological framework for the protection and promotion of traditional cultural expressions. It analyses the relevant rights in the CCPR (Articles 1, 19, 22 and 27) and CESCR (Articles 1 and 15), namely rights to the self-determination of peoples, freedom of expression, freedom of association, minority rights and the right to benefit from one’s literary and artistic productions. The chapter then discusses the institutional nature of these rights, despite that they are normally considered to be individual rather than group rights. This is followed by the development of a procedural strategy for interfacing modern law and local traditions.

Indigenous cultural heritage and Fairtrade: voluntary certification standards in the light of WIPO and WTO law and policymaking

Private initiatives for voluntary certification standards appear to be an attractive alternative to top-down approaches in the field of indigenous cultural heritage and development. Over the last 50 years, many different indigenous communities have attempted to use certification trademarks to promote their authentic cultural products. These schemes have had varying success, but arguably none has been as visually unsuccessful as the government-funded Australian system, which collapsed within two years of its inception. On the other side of the scale, the Fairtrade label is considered to be an international triumphant success. This paper assesses why the Australian authenticity label system failed, while the Fairtrade label succeeded, and how these conclusions can be used for existing and future endeavours. It further discusses whether such a voluntary certification system would be compliant with World Intellectual Property Organisation and World Trade Organisation law and policy. It concludes by looking towards the future and the possibility of the Fairtrade label being extended to meet the interests of indigenous communities.

Institutionalization of Creativity in Traditional Societies and in International Trade Law

Modern legal systems were not developed to deal with the modes of creativity and the meanings behind cultural expressions of traditional societies. The protection of creative expressions and knowledge through intellectual property rights has a commoditizing effect, inconsistent with the customary norms of many traditional societies, such that the propertization is offensive. This paper assesses the concept of creativity, from a modern and traditional perspective, and the effect of globalization on Indigenous peoples’ views on the trade of their cultural heritage. It then analyzes Indigenous creativity in the realm of international trade law and how WTO law could better serve the interests of Indigenous peoples, with respect to their participation in the international trade of certain aspects of their cultural heritage, and discusses how the UN Declaration on the Rights of Indigenous Peoples may affect such trade.

Is There Potential for Collective Rights Management at the Global Level? Perspectives of a New Global Constitutionalism in the Creative Sector

This chapter inquires into the possibility of collective rights management (CRM) systems playing an important role at the global level. The analysis departs from the insight that a globalising culture and the internet economy are both interested in a much simpler system of copyright licensing and that systems of CRM could be a promising solution. The chapter argues that a globalised CRM system would provide a counterpoise to the prevailing economic concentration that results from big entertainment corporations controlling intellectual property (IP) rights. The fundamental question is how the conflicting public-policy interests at issue, including IP, open markets and cultural diversity, could be reconciled. This challenging question is discussed from the theoretical perspective of a new global constitutionalism in the creative sector. What lessons can be learned from the current European debate on conflicting economic and cultural values in the CRM context? With regard to questions of implementation, the chapter will reflect on the need for some institutional structure at the international level and consider how a global CRM system could benefit from and interface with a global database for music and (potentially) audiovisual works.

State Aid for Digital Games and Cultural Diversity: A Critical Reflection in the Light of EU and WTO Law

Governments in Europe and elsewhere are increasingly subsidising the production of digital games, whether directly or indirectly, often arguing that this is necessary to promote the diversity of cultural expressions on the Internet. Whether digital games belong to the sphere of culture has important implications for European and international economic law, due to the cultural purposes safeguard, which justifies exemptions from the principle of trade liberalisation. The paper first looks generally at the question whether digital games are in fact cultural expressions. Second, the paper analyses how this question has been dealt with in the realm of EU competition law. Here, cultural purposes justify both privileges for public service broadcasters and exemptions from the general ban on subsidies. The last part of the paper is dedicated to the law of the World Trade Organization, wherein framing digital games as cultural expressions, or not, may determine their classification within the General Agreement on Tariffs and Trade and/or the General Agreement on Trade in Services and impact the applicable level of commitments for trade liberalisation. It concludes that though digital games do belong to the cultural sphere, their promotion should not be automatic. Rather legitimacy is contingent on whether a market failure is being corrected. Therefore, the validity of support measures should be governed by requiring that they be to protect/promote a goal of the UNESCO Convention on Cultural Diversity and that they are necessary to that end.

Freedom and Affordances of the Net

This Article is about the relationship between technology and society in fundamental rights theory. So far, the discussion about law and technology has generally been onedirectional within the most relevant branches of the social sciences; scholars of the law have been treating technology as a black box when conducting their analyses or developing their theories. In turn, science and technology studies have considered law and regulation as a closed book, which is unsatisfactory as well. Reductionist and compartmentalized theorizing is particularly problematic when it comes to conceiving a fundamental rights theory that is able to cope with challenges of the Internet. Guided by Niklas Luhmann’s autopoietic systems theory, this Article offers novel perspectives that aim at theoretically explaining how affordances can be conceptualized within constitutional rights theory, with the focus on the freedom of the Internet.

The Prospects of International Trade Regulation: The protection and promotion of cultural diversity in a digital networked environment: mapping possible advances towards coherence

Neither the WTO nor UNESCO currently offers appropriate solutions to the trade and culture predicament that would allow for efficient protection and promotion of cultural diversity. The trade and culture discourse is over-politicised and owing to the related path dependencies, a number of feasible solutions presently appear blocked. The digital networked environment has profoundly changed the ways cultural content is created, distributed, accessed and consumed, and may thus offer good reasons to reassess and readjust the present models of governance. Access to information appears to be the most appropriate focus of the discussions with a view to protecting and promoting cultural diversity in the new digital media setting, both in local and global contexts. This new focal point also demands broadening and interconnecting the policy discussions, which should go beyond the narrow scope of audiovisual media services, but cautiously take account of the developments at the network and applications levels, as well as in other domains, most notably protection of intellectual property rights. There are various ways in which the WTO can be made more conducive to cultural policy considerations and these include improved and updated services classifications; enhanced legal certainty with regard to digitally transferred goods and services; and incorporation of rules on subsidies for services and on competition.

Governance of Digital Game Environments and Cultural Diversity. Preface

Conventional legal models have proven unable to cater for the novel issues created by the advancing digital game media, resulting in a fragmentation of national, regional and international regulations, which impact societies, economies and culture. The governance of this media and its affect on cultural diversity are introduced herein.