Relations between Copyright,

Cultural Heritage Protection Regulations

and Cultural Diversity

Romana Matanovac VučkovićFaculty of Law, Zagreb

ALAI Conference, Dubrovnik, 6-8/10/08

INTERNATIONAL LEVEL- principles

cultural heritage

cultural diversity

intellectual property rights

TANGIBLE CULTURAL HERITAGE

universal concept - it belongs to all the peoples of the world, irrespective of the territory on which it is located

UNESCO seeks to encourage the identification, protection and preservation of the cultural and natural heritage around the world considered to be of outstanding value to humanity. - Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972.

INTANGIBLE CULTURAL HERITAGE

“living” cultural heritage, reflects new approaches to the understanding, protection and respect for the cultural heritage of humanity

“driving force” of cultural diversity, its maintenance is a guarantee for continuing creativity

UNESCO has one of the leading roles in safeguarding of the intangible cultural heritage - Convention for the Safeguarding of the Intangible Cultural Heritage, 2003

“OTHER TYPES” OF PROTECTION OF CULTURAL HERITAGE

Other international instruments:

on the protection of the cultural heritage in the event of armed conflict

special instruments on the protection of the underwater, archaeological, audiovisual, architectual cultural heritage...

protection of the cultural heritage against the illict export / import, transfer of ownership

UNESCO, UNIDROIT, COUNCIL OF EUROPE...

COMPARISON ICULTURAL HERITAGE

according to international treaties

TANGIBLE

monuments, groups of buildings, sites

other immoveables and moveables

INTANGIBLE

practices, representations, expressions, knowledge, skills, instruments, objects, artefacts and cultural spaces associated therewith - that communities, groups and, in some cases, individuals recognize as part of their cultural heritage

manifested inter alia in the following domains:

oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;

performing arts; social practices, rituals and festive

events; knowledge and practices concerning

nature and the universe; traditional craftsmanship.

COMPARISON IICULTURAL HERITAGE

according to international treaties

TANGIBLE

increasingly threatened by destruction

causes: traditional causes of decay change of social and economic

conditions

is of outstanding interest and therefore needs to be preserved as part of the world heritage of mankind as a whole

INTANGIBLE

threats of deterioration, disappearance and destruction

causes: lack of resources for safeguarding processes of globalization and social

transformation, alongside the conditions they create for renewed dialogue among communities

phenomenon of intolerance

it is a mainspring of cultural diversity and a guarantee of sustainable development

the need to build greater awareness, especially among the younger generations, of the importance of the intangible cultural heritage and of its safeguarding

COMPARISON IIICULTURAL HERITAGE

according to international treaties

TANGIBLE

to identify, protect, conserve, present, transmit to future generations

to adopt a general policy which aims to give the cultural and natural heritage a function in the life of the community and to integrate the protection of that heritage into comprehensive planning programmes

to take the appropriate legal, scientific, technical, administrative and financial measures necessary for the identification, protection, conservation, presentation and rehabilitation of this heritage;

INTANGIBLE

to safeguard

to identify and define

to adopt a general policy aimed at promoting the function of the intangible cultural heritage in society, and at integrating the safeguarding of such heritage into planning programmes

to adopt appropriate legal, technical, administrative and financial measures aimed at:

(ii) ensuring access to the intangible cultural heritage while respecting customary practices governing access to specific aspects of such heritage;

(iii) establishing documentation institutions for the intangible cultural heritage and facilitating access to them.

RELATIONCH – IP

according to international treaties

CH

tangible – no prejudice to national property rights

intangible – no prejudice to international IP treaties

IP

no regulation on its relation to CH

RELATIONtangible CH – IP

according to international treaties

PROPERTY RIGHTS without prejudice to national property rights - a general rule

proclaimed in CH Convention according to the national legislations, property (ownership) is

limited by CH rules because of the general obligation of PROTECTION, CONSERVATION, PRESENTATION and REHABILITATION of objects protected as tangible cultural heritage

COPYRIGHT without prejudice to IP rights - a general rule, not expressly

proclaimed in CH Convention but because of the general obligation of PROTECTION,

CONSERVATION, PRESENTATION and REHABILITATION of objects protected as tangible cultural heritage, rights deriving from the copyright protection could be limited

alterations, destruction , reproduction...?

RELATIONintangible CH – IP

according to international treaties

PROPERTY RIGHTS

no regulation on the relation between the intangible cultural heritage and property rights (ownership)

COPYRIGHT

without prejudice to the obligations and rights deriving from international IP treaties - a general obligation to follow the rules provided for in international IP treaties

does it mean that national rules on intangible CH should never affect national rules on copyright?

Could the rights deriving from the copyright protection be limited because of the general obligation to SAFEGUARD (identify and define) the objects protected as intangible cultural heritage?

is it possible to limit copyright in respect of a work / performance which is at the same time protected as an intangible cultural heritage?

CULTURAL DIVERSITY

cultural expressions of groups and societies, whatever the means and technologies used

represents common heritage of humanity and full realization of human rights and fundamental freedoms

UNESCO has one of the leading roles in protecting and promoting cultural diversity – Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 2005

COMPARISON IIP – CD

according to international treaties

IP

private rights

protects works, performances, etc.

economic and moral rights

CULTURAL DIVERSITY

common heritage of humanity

protects cultural expressions

promotes both a cultural and an economic value of cultural expressions because they convey identities, values and meanings, and must therefore not be treated as solely having commercial value

COMPARISON IIIP – CD

according to international treaties

IP

obligation of the states to unify the rules for the protection and enforcement + obligation of effective enforcement (TRIPS)

effective system is an incentive for literary and artistic creation (WCT) + IP rights should not themselves become barriers to legitimate trade (TRIPS)

CULTURAL DIVERSITY

sovereign right of the states to formulate and implement cultural policies and to adopt measures to protect and promote the cultural diversity + urgent protection

IP important for those involved in cultural creativity

RELATIONIP – CD

according to international treaties

IP

no regulation on CD

aim (proclaimed in WCT and TRIPS only):

protection of private rights public policy objectives:

incentive for creativity (WCT) + developmental and technological objectives (TRIPS)

trade-related aspects of IP (proclaimed in TRIPS only)

promotion of the applicability of the basic principles of GATT 1994 and of relevant international intellectual property agreements and conventions (TRIPS)

CULTURAL DIVERSITY

explicit relation to IP as important for those involved in cultural creativity

aim: public policy objective to

protect and safeguard CD

CD is corrective to multilateral and bilateral agreements on international trade:

principles of mutual supportiveness, complementarity and non-subordination to other international treaties

RELATIONSHIP OF CD CONVENTION TO OTHER TREATIES:

Article 20 of the CD Convention:

1. Parties recognize that they shall perform in good faith their obligations under this Convention and all other treaties to which they are parties. Accordingly, without subordinating this Convention to any other treaty,

(a) they shall foster mutual supportiveness between this Convention and the other treaties to which they are parties; and

(b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, Parties shall take into account the relevant provisions of this Convention.

2. Nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties.

RELATION CH – CD

according to international treaties

CULTURAL HERITAGE public interest importance of the

intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development (UNESCO Convention)

protection and safeguarding of cultural heritage is prerequisite for the protection and development of cultural diversity

CULTURAL DIVERSITY public interest

cultural diversity forms a common heritage of humanity and should be cherished and preserved for the benefit of all

Cultural diversity is made manifest not only through the varied ways in which the cultural heritage of humanity is expressed, augmented and transmitted through the variety of cultural expressions, but also through diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used.

RELATIONS: IP – CH – CDaccording to international treaties- complementarity

artistic creation

copyright cultural heritage cultural diversity

RELATIONS: IP – CH – CDin practice- mutual impregnation

cultural heritage

cultural diversity

copyright

THANK YOU FOR YOUR ATTENTION!