If not this World Trade Organisation, then what?

Reviews the criticisms made of the World Trade Organisation's negotiating position at the Cancun Ministerial Conference and considers whether an alternative method of creating international trade rules is possible. Examines opposition to the WTO's approach to the comparative advantage doctrine from supporters of trade liberalisation, the anti-globalisation arguments of its opponents and the politico-structural objections to WTO policy, including concerns of developing countries that most foreign direct investment comes from multinational enterprises. Comments on the WTO's allegedly undemocratic governance and considers how countervailing values might be introduced into international trade by reconciling the systems of public international law with those of international economic law

Arts festivals as cultural heritage in a copyright saturated world

Book synopsis: What is the relationship between creativity, cultural heritage institutions and copyright? Who owns culture and cultural heritage? The digital age has expanded the horizon of creative possibilities for artists and cultural institutions - what is the impact on legal regimes that were constructed for an analogue world? What are the tensions between the safeguarding of cultural heritage and the dissemination of knowledge about culture? Inspired by a three year research project involving leading European universities, this book explores the relationship between copyright and intellectual property, creativity and innovation, and cultural heritage institutions. Its contributors are scholars from both the humanities and the social sciences - from cultural studies to law - as well as cultural practitioners and representatives from cultural heritage institutions. They all share an interest in the contribution of intellectual property to the role of cultural institutions in making culture accessible and encouraging new creativity

The problematic relationship between traditional knowledge and the commons

The first international instrument in which the expression “traditional knowledge” appears is the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005, which makes reference to “the importance of traditional knowledge as a source of intangible and material wealth, and in particular the knowledge systems of indigenous peoples, and its positive contribution to sustainable development, as well as the need for its adequate protection and promotion”. The reference to the traditional knowledge of indigenous peoples is not without significance in this context. In fact, much of the international debate around this question has been focussed on the traditional knowledge of indigenous peoples. This aspect of the debate has also found expression in the UN Declaration on the Rights of Indigenous Peoples of 2007 (the so called DRIPs). According to the DRIPs, the rights of indigenous peoples in their traditional knowledge include the right to protect this knowledge in the form of intellectual property. This chapter proposes to investigate two propositions that have become premises of the international debate around this question: first, that the protection of traditional knowledge is primarily a question of the rights of indigenous peoples; and, secondly, that the form of the protection of traditional knowledge is primarily a question of intellectual property law. In relation to the first of these two underlying premises, that the protection of traditional knowledge is primarily relates to the rights of indigenous peoples, the chapter unequivocally accepts that the question of the just treatment of indigenous peoples is one of great importance. Indigenous peoples have suffered, and continue to suffer, grave injustices in the post-colonial period. Without the legal identity that comes from the privilege of statehood indigenous peoples are not part of the community of international law makers. This, of course suggests that a just response to the claims of indigenous peoples requires something more than simply the protection of their cultural heritage. In fact, the focus of the debate on questions such as the traditional knowledge of indigenous peoples seems calculated to distract attention from much more pressing political claims. At the same time, this focus also distracts from the undoubted fact that it is not only indigenous peoples that have traditional knowledge. This fact has not entirely escaped attention at the international legal level. The representative list of the intangible cultural heritage of humanity established under the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage of 2003 contains examples of traditional knowledge of communities other than those regarded as indigenous peoples under international law. However, inclusion in this list is a form of recognition of traditional knowledge in relation to which a state is making some sort of claim. It does not necessarily entail the recognition of communities not forming a state in international law, nor does it constitute protection per se. So, is it necessary to have some other form of protection for traditional knowledge and, if so, what and for the benefit of whom? This takes us to the second underlying premise of the debate, which suggests that protection of traditional knowledge falls within the remit of intellectual property law. In analysing this proposition, the chapter will emphasize two central aspects of intellectual property. The first of these is that it is a right to private property. The second is that this form of private property is designed to enable investment in liquid assets, with the ultimate effect of promoting the accumulation of capital to the benefit of those best able to reap profits from that accumulation. In the light of these observations, the chapter will problematize the idea that intellectual property is a suitable form of protection for a community’s rights in its traditional knowledge, whether formed of indigenous peoples or not. This line of argument, however, leads us to a further question which is what we do about traditional knowledge if we do not protect it by way of intellectual property rights. One solution would be to put it in the cultural commons where it would be freely available. Not only is this solution unacceptable to indigenous peoples, it is also not clear that it would be acceptable to other communities or, indeed, to the maintenance of the integrity, self-reflexivity and other inherent qualities of traditional knowledge systems. As the chapter will argue, the principal problem with the concept of the unregulated cultural commons in this respect may be that it is unable to defend the specific interest of communities in the protection of their cultural heritage. The commons, the chapter will argue, are like a defence without a fence; they are a space defined by the absence of intellectual property rights, and thus by intellectual property law itself. The final part of the chapter, therefore, will consider what other options there are with respect to the protection of traditional knowledge. It will consider what legal architecture might be put in place to protect a community’s rights in its cultural heritage without erecting the sort of fences characterised by private property rights that have the capacity to interfere with the collective rights of a community. In approaching a solution, the chapter will argue, it is important to avoid the type of essentialism that might suggest cultural (and political) closure, and so interfere with practices of cultural and creative interchange that have made the world (for better or worse) what it is today. Accordingly, the necessary legal architecture must be more than some vague concept defined by the absence of positive property rights. It must furnish guarantees against misappropriation and unauthorized use. And it will have to transcend the antiquated division between public (in the sense of the state) and private rights, recognising the concept of community rights

Copyright, the creative industries, and the public domain

This article argues that copyright’s commodification of creativity has established a structure that, allied with aspects of the market for cultural goods and services, enables the domination of cultural output by the creative industries. The article argues that the primary tools of the commodification process have been the alienability of the copyright interest, the long duration of copyright, its horizontal expansion, its strong distribution rights, and the apparent demise of some of the most significant user rights. The consequent dominance of the creative industries over cultural output has had the effect of contracting the public domain and potentially restricting creativity. The article focuses on the question of available legal strategies for preserving, or even reclaiming, a portion of the public domain order to address the negative effects of the commodification process

Law and development

This chapter argues that the international development project is an artefact of the system of international economic law that was remade at the end of the Second World War. In this role, it is fundamentally implicated in the long relationship between international law, Western capitalism and imperialism. As a result, the famous 1922 “dual mandate”, according to which colonialism was justified as part of the universal historical mission of the imperial powers, continues to be central to the development project. The chapter suggests that the failure of the development project in the “developing” world, with its consequent human suffering, may be alternatively characterised as a great success for that portion of the planet that counts itself, in international law terms, as developed

Social Reproduction in the Realm of the Intangible

The discourse of intellectual property rights demonstrates an almost total marginalisation of questions of social reproduction.  This rhetorical aporia in what is already an invisible space has operated to obscure these questions in at least two significant ways.  First, it has resulted in a failure to engage with the sublimation of social reproduction in the creation of a range of culturally, politically and economically distinct and significant property relations.  Secondly, it operates to obscure the role of social reproduction in legal regimes governing technological innovation. By focusing on the figure of the “author” in copyright law and the “inventor” in patent law, this article aims to sketch the formation of a strategic position in the so-called “intellectual property wars” that is capable of recognising the role of social reproduction in the realm of the intangible