Commercializing cultural heritage? Criteria for a balanced instrumentalization of traditional cultural expressions for development in a globalized digital environment

Intellectual Property and Traditional Cultural Expressions in a Digital Environment

Volumn , Issue , 2008, Pages 256-286

  Sahlfeld, Miriam ^a  

^a UNIVERSITY OF KIEL   (Germany)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78449306947     PISSN: None     EISSN: None     Source Type: Book    
DOI: None     Document Type: Chapter

References (72)

1. Complementary to the ambiguous term of development is the equivocal definition of poverty. Western definitions of poverty and development often disregard the kind of society that creates the values. See Mary Douglas, "Traditional Culture - Let's Hear No More About It" in Vijayendra Rao and Michael Walton (eds), Culture and Public Action, Stanford: Stanford University Press, 2004, pp. 85-109, at p. 90.
2. UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted at the 33rd Session of the General Conference of UNESCO, Paris, 20 October 2005, entered into force 18 March 2007 (hereinafter UNESCO Convention on Cultural Diversity)
3. WIPO uses the following descriptions: (a) "Traditional cultural expressions" or "expressions of folklore" are any forms, whether tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof: (i) verbal expressions, such as: stories, epics, legends, poetry, riddles and other narratives; words, signs, names, and symbols; (ii) musical expressions, such as songs and instrumental music; (iii) expressions by action, such as dances, plays, ceremonies, rituals and other performances; whether or not reduced to a material form; and (iv) tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewelry, baskets, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms; which are: (aa) the products of creative intellectual activity, including individual and communal creativity; (bb) characteristic of a community's cultural and social identity and cultural heritage; and (cc) maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community. See WIPO, The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles, WIPO/GRTKF/IC/8/4, 8 April 2005 (unaltered in WIPO/GRTKF/IC/9/4, 9 January 2006, WIPO/GRTKF/IC/10/4, 2 October 2006, WIPO/GRTKF/IC/11/4(c), 26 April 2007, and WIPO/GRTKF/IC/12/4(c), 6 December 2007, and reproduced in the Annex of this volume), Annex, at Article 1 (Subject Matter of Protection).
4. See e.g. UNESCO Convention on Cultural Diversity, at Article 2(5).
5. However, even in this respect different value systems come up with different explanations for diseases, for instance. Tribal medicine men or women are made responsible for it and claim that they can heal it. The Catholic Church has been using the threat of AIDS to combat promiscuity, presenting the disease as a punishment.
6. See also the interpretation given to Article 1 of the Cotonou Agreement (Partnership Agreement between the Members of the African, Caribbean and Pacific Group of States and the European Community and its Member States, signed in Cotonou, Benin, 23 June 2000) in Cotonou Agreement: A User-Guide for Non-State-Actors, compiled by the European Centre for Development Policy Management, November 2003, at p. 13. See also Article 9(2) of the Cotonou Agreement.
7. Amartya Sen, Commodities and Capabilities, Oxford: Oxford University Press, 1999
8. Human development is often understood as addressing the issues measured by the Human Development Index (HDI), including: first, a long and healthy life, as measured by life expectancy at birth; second, knowledge, as measured by the adult literacy rate (with two-thirds weight) and the combined primary, secondary, and tertiary gross enrolment ratio (with one-third weight); third a decent standard of living, as measured by the log of gross domestic product per capita at purchasing power parity in USD. The report is being published by the United Nations Development Programme in its annual Human Development Report. With regard to TCE, the HDI focuses largely on western values and denies that human individual and societal development is possible beyond the HDI categories.
9. See Alex Cohen, "The Mental Health of Indigenous Peoples: An International Overview" (1999) Cultural Survival Quarterly 23:2; David Pedersen, "Mental Health Amongst the Indigenous Peoples of Latin America" (1993) Working Paper No 19, Series on International Mental and Behavioral Health, Harvard University
10. Johanna Gibson, "Freedoms and Knowledge, Access and Silence: Traditional Knowledge and Freedom of Speech" in Fiona Macmillan (ed.), New Directions in Copyright Law: Vol. 2, Cheltenham, UK: Edward Elgar, 2006, pp. 198-221, at p. 199.
11. There are many ways of destroying pathways to a meaningful life, such as disease, genocide, loss of territory, and repression of language and culture. A modern society example of a loss of pathways to a meaningful life is the soft revolution that took place in many ex-soviet countries. However, a successful adaptation to a new set of values happens quickly, often after one generation.
12. Regarding the overvaluation of culture as an integrative factor in modern societies, see Gaetano Romano, "Braucht die Gesellschaft eine gemeinsame Kultur" in Hans-Joachim Hoffmann-Novotny (ed.), Das Fremde in der Schweiz, Ergebnisse Soziologischer Forschung, Zurich: Seismo, 2001, pp. 241-259, who argues that adapting to the multitude of equivalent functional societal systems is what is required of migrants.
13. In the case of migrants, the new set of values does not replace the values and ways of their original homes. The latter stay alive through contacts with the former home and therefore may collide with the values and pathways to living proposed by the receiving culture. See e.g. Tahire Erman, "Rural Migrants and Patriarchy in Turkish Cities" (2001) International Journal of Urban and Regional Research 25:1, pp. 118-133; Steven Vertovec, "Transnationalism and Identity" (2001) Journal of Ethnic and Migration Studies 27:4, pp. 573-582.
14. See the examples by Doris Estelle Long, "The Impact of Foreign Investment on Indigenous Culture: An Intellectual Property Perspective" (1998) North Carolina Journal of International Law and Commercial Regulation 23, pp. 229-280, at p. 243.
15. Similarly, The World Bank, Culture and Sustainable Development, A Framework for Action, Washington, DC: The World Bank, 1999, at p.13.
16. Alexis de Tocqueville has tried to find out what factors sustain democracy in the United States: "De causes principales qui tendent à maintenir la république démocratique aux Etats-Unis" Chapitre IX, De la démocratie en Amérique I, 2ème partie, 1835, at p. 113.
17. See Recital 1 of the Charter for the Cultural Renaissance for Africa (AUCMC/EXP.CHAR.1(I), 14 December 2005): "Convinced that any human society is necessarily governed by rules and principles based on traditions, languages, ways of life and thought in other words on a set of cultural values which reflect its distinctive character and personality".
18. See the early work on the subject by Gabriel Almond and Sidney Verba, Civic Culture, Boston: Little Brown, 1965. While in the 1970s and 1980s it seemed irreconcilable with the equality of men and peoples to assume more or less conduciveness to democracy, more recent works emphasize the important role of culture for the development of democracy. See Robert Putnam, Robert Leonardi, and Raffaella Y. Nanetti, Making Democracy Work: Civic Traditions in Modern Italy, Princeton: Princeton University Press, 1993; Ronald Inglehart, Culture Shift in Advanced Industrial Society, Princeton: Princeton University Press, 1990; Ronald Inglehart, Modernization and Postmodernization: Cultural, Economic and Political Change in Forty-Three Societies, Princeton: Princeton University Press, 1997. See also the UNESCO Convention on Cultural Diversity, at Recital 10.
19. Avner Greif, "Cultural Beliefs and the Organization of Society: A Historical and Theoretical Reflection on Collectivist and Individualist Societies" in Mary C. Brinton and Victor Nee (eds), The New Institutionalism in Sociology, New York: Russell Sage, 1998, pp. 77-104, at p. 96.
20. Ronald Inglehart, "Culture and Democracy" in Samuel P. Huntington and Lawrence E. Harrison (eds), Culture Matters: How Values Shape Human Progress, New York: Basic Books, 2000, pp. 80-94, at p. 92.
21. Economic wealth alone, of a given country, does not pave the way to democracy as evidenced by e.g. the Gulf countries.
22. The World Bank, Culture Counts: Financing, Resources and the Economics of Culture in Sustainable Development, Washington, DC: The World Bank, 1999
23. As Gunnar Myrdal noted in a publication as early as 1968, there is insufficient knowledge about what people value highly in a given society, as quoted in Asiatiskt Drama. En undersökning om nationernas fattigdom, ekonomiska och sociala problem i Sydasien, i sammandrag av Kjell Eriksson et al., Stockholm: Utrikespolitiska Institutet, Rabén & Sjögren, 1970, at p. 10.
24. Edward C. Banfield, The Moral Basis of a Backward Society, Chicago: The Free Press, 1958; Oscar Lewis, "The Culture of Poverty" in Daniel Patrick Moynihan (ed.), On Understanding Poverty: Perspectives from the Social Sciences, New York: Basic Books, 1968.
25. Douglass C. North, Institutions, Institutional Change and Economic Performance, Cambridge: Cambridge University Press, 1990; Clifford Geertz, "Ideology as a Cultural System" in Clifford Geertz (ed.), The Interpretation of Cultures, New York: Basic Books, 1973.
26. On the experiences of Edward C. Banfield in southern Italy and George Foster in Mexico, see Daniel J. O'Neil, "Culture Confronts Marx" (1995) International Journal of Social Economics 22, at pp. 50-51, which were very pessimistic about changing the traditional culture.
27. See the World Bank, A Sourcebook for Poverty Reduction Strategies, Washington, DC: The World Bank, 2002, at Chapter 1: Poverty Measurement and Analysis
28. The determinants should be identified in the framework of the so-called Poverty Reduction Strategy Papers (PRSP), which are now required by the World Bank and the International Monetary Fund. PRSP describe a country's macroeconomic, structural and social policies and programmes to promote growth and reduce poverty, as well as associated external financing needs. See Burama K. Sagnia, "Culture and Poverty Alleviation in Africa - A Review of the Cultural Effectiveness of Poverty Reduction Strategy Papers in West and Central Africa", Report prepared for the Conference on African Culture Sector Development, Goree Island, Dakar, Senegal, 5-7 March, 2007, paras. 97 and 117.
29. The famous example is that of badly managed development in Panama, where labour was diverted from producing rice for home production to producing sugar cane for manufacture and export. See Stephen Gudeman, The Demise of a Rural Economy - From Subsistence to Capitalism in a Latin American Village, London: Routledge, 1978.
30. Karl Marx, Capital, Vol. 1: A Critique of Political Economy, London: Pelican Books, 1976 (English version), at Section 4: The Fetishism of Commodities and Its Secret.
31. The classical example is that of a lump of gold which is highly valued although it is completely useless compared to needles in a given situation
32. Rosemary J. Coombe, Steven Schnoor, and Ahmed Mohsen, "Bearing Cultural Distinction: Informational Capitalism and New Expectations for Intellectual Property" (2007) UC Davis Law Review 40, pp. 891-917, at p. 893; Anne Meneley, "Extra Virgin Olive Oil and Slow Food" (2004) Anthropologica 46:2, at pp. 165, 173.
33. Daphne Zografos, "The Legal Protection of Traditional Cultural Expressions: Is Copyright the Answer" in supra, note 13, pp. 181-197, at pp. 184-185; Michael F.Brown, Who Owns Native Culture, Cambridge, MA: Harvard University Press, 2003; Sybille E. Schlatter, "Copyright Collecting Societies in Developing Countries: Possibilities and Dangers", in Anselm Kampermann Sanders and Christopher Heath (eds), New Frontiers of Intellectual Property Law: Industrial Property and Cultural Heritage, Geographical Indications, Enforcement and Overprotection, Oxford: Hart, 2005, at p. 54; pleading for a concept of authorship accommodating cultural differences, see Megan M. Carpenter, "Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community" (2004) Yale Human Rights and Development Law Journal 7, pp. 51-78, at p. 63.
34. Valerie J. Phillips, "Parallel Worlds: A Sideways Approach to Promoting Indigenous-Nonindigenous Trade and Sustainable Development", University of Tulsa Legal Studies Research Paper No. 2007-02, available at http://ssrn.com/ abstract=1019077.
35. The World Bank list of funded programmes relating to cultural heritage and sustainable development can be found at its: http://www.worldbank.org
36. African Union, Charter for the Cultural Renaissance of Africa, AUCMC/EXP.CHAR.1(I), Addis Ababa, 13-14 December 2005. Cultural Industries for Development in Africa - Dakar Plan of Action, adopted by the OAU, Summit of the Heads of State and Government, Dakar, Senegal, June 1992; Nairobi Plan of Action for Cultural Industries in Africa, adopted at the First Ordinary Session of the African Union Conference of Ministers of Culture, 10-14 December 2005.
37. Santo Domingo Resolution, 2nd Meeting of ACP Ministers of Culture, ACP/83/046/06 [Final] PAHD Dept., 13 October 2006.
38. Article 4(4) of the UNESCO Convention on Cultural Diversity
39. See the examples in Frank J. Penna and Coenraad J. Visser, "Cultural Industries and Intellectual Property Rights" in Bernhard Hoekman, Aaditya Mattoo, and Philip English (eds), Development, Trade and the WTO - A Handbook, Washington DC: The World Bank, 2002, pp. 390-402, at p. 390; Bartholomew Dean, "Digitizing Indigenous Sounds: Cultural Activists and Local Music in the Age of Memorex" (2001) Cultural Survival Quarterly 24:4.
40. See Carol Hendrickson, "Maya Export in US-Mail Catalogue" in David Howes (ed.), Cross-Cultural Consumption: Global Markets and Local Realities, London: Routledge, 1996, at pp. 106-121. It should also be mentioned that organizations promoting fair trade are not only importing agricultural goods and appliances for daily use from baskets to combs, but also decorative art or traditional toys that might qualify as TCE.
41. In 1999, the World Bank, UNESCO and UNCTAD had already seen the benefits of combining protection of cultural heritage and poverty alleviation through tourism. See Outcome of the High-Level Meeting on Tourism and Development in the Least Developed Countries, Gran Canaria, 26-29 March 2001, A/CONF.191/BP/4, 5 April 2001, at pp. 3 and 6. See also UNEP on Eco-Tourism, at http://www.uneptie.org /pc/tourism/ecotourism/home.htm.
42. Magali Daltabuit and Oriol Pi-Sunyer, "Tourism Development in Quintana Roo, Mexico" (1990) Cultural Survival Quarterly 14:1, p. 910.
43. Barbara R. Johnston, "Introduction: Breaking Out of the Tourist Trap" (1990) Cultural Survival Quarterly 14:1.
44. Kathleen M. Adams, "Cultural Commoditization in Tana Toraja, Indonesia" (1990) Cultural Survival Quarterly 14:1.
45. See the comparison between two cultural communities in China in Margaret Byrne Swain, "Commoditizing Ethnicity in Southwest China" (1990) Cultural Survival Quarterly 14:1
46. First Meeting of the UNESCO/UNITWIN Network "Culture, Tourism and Development", Sustainable Development and the Optimizing of Cultural Diversity: How Well Is Tourism Adapting to These New Challenges", Paris, 18 March 2005, Final Report and Recommendation, available at http://portal.unesco.org/culture/en/ ev.php-URL_ID=32065&URL_DO=DO_ TOPIC&URL_SECTION=201.html.
47. That is also the position of the European Union. See European Council, Presidency Conclusions, 10633/1/06REV 1, 17 July 2006.
48. See UN Department of Economic and Social Affairs, Division for Sustainable Development, at http://www.un.org/esa/sustdev/sdissues/sdissues.htm. Similarly, a major compendium on sustainable development Nico Schrijver and Friedl Weiss, International Law and Sustainable Development: Principles and Practice, Leiden: Martinus Nijhoff, 2004 does not address culture or cultural diversity.
49. Recital 8 of the UNESCO Convention on Cultural Diversity already included the statement: "Recognizing 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". Article 2(6) even refers to the Principle of Sustainable Development: "Cultural diversity is a rich asset for individuals and societies. The protection, promotion and maintenance of cultural diversity are an essential requirement for sustainable development for the benefit of present and future generations." Article 13 then contains an admittedly rather weak obligation of state parties to integrate culture in sustainable development: "Parties shall endeavour to integrate culture in their development policies at all levels for the creation of conditions conducive to sustainable development and, within this framework, foster aspects relating to the protection and promotion of the diversity of cultural expressions".
50. International Trade Centre, Position Paper: Challenges and Opportunities in Export Development of Creative Industries: ITC's Future Technical Assistance for the Product Sector, December 2004, available at http://www.intracen.org/ CreativeIndustries/PositionPaper.pdf.
51. UNCTAD, Creative Industries and Development, TD(XI)/BP/13, 4 June 2004, at p. 12. The projected interorganizational International Observatory on Creative Industries (IOCID) that was to have coordinated UN activities regarding creative industries never became operational.
52. Council of the European Union, Review of the EU Sustainable Development Strategy, 10917/06, 26 June 2006, Annex, at p. 1.
53. See Global Development Research Centre, with definitions of eco-tourism by several NGOs, available at http://www.gdrc.org/uem/eco-tour/etour-define.html.
54. Karin Gwinn Wilkins and Young-Gil Chae, "Questioning Development Industry Attention to Communications Technologies and Democracies" (2007) International Journal of Communication 1, pp. 342-359, at p. 354.
55. The Global Alliance for ICT and Development (GAID), see http://www.ungaid. org/.
56. See http://www.laptop.org/.
57. Alex Keck and Calvin Djiofack, "Telecommunication Services in Africa: The Impact of Multilateral Commitments and Unilateral Reform on Sector Performance and Economic Growth", Staff Working Paper Economic Research and Statistics Division World Trade Organization, 10 November 2006
58. In this regard, see Miriam Sahlfeld, "How Does ICTWork for Development Challenges and Opportunities" (2007) African Technology Development Forum 4:1, pp. 22-36. See also Victor Konde, "What Type of National ICT Policies Maximize ICT Benefits" (2007) African Technology Development Forum 4:1, pp. 39-48.
59. Multilingualization is one of the goals agreed upon at the World Summit on the Information Society (WSIS), see WSIS, Tunis Agenda for the Information Society, WSIS-05/TUNIS/DOC/6(Rev.1)-E, 18 November 2005, at paras 29, 49, 53.
60. Referring to traditional communities in first world countries, such as the Saami in Scandinavia or the Aborigines in Australia
61. Xavier Fantognan, "A Note on African Languages on the Worldwide Web" in UNESCO, Measuring Linguistic Diversity on the Internet, Paris: UNESCO, 2005, at pp. 105-108; Marcel Diki-Kidri, "L'accès au cyberspace des langues peu dotés", presentation for Union Latine of UNESCO at the ITU and UNESCO Global Symposium on Promoting the Multilingual Internet, Geneva, 9-11 May 2006, at p. 4. A good barometer is the number of languages in which Google is available.
62. Another example is the Aborigine Morning Star Pole on a commemorative banknote (Yumbulul v. Reserve Bank of Australia, 1991, 2 I.P.R. 481).
63. "The Limits to Free Speech, Cartoon Wars", The Economist, 9 February 2006
64. For combating child pornography, the investigating authorities use a program that allows them to search the Internet for pictures, which they obtained in earlier cases. A similar technology could be applied to find visualized traditional cultural expressions, see http://www.perkeo.net/.
65. This is the procedure applied to other types of illegal content, be it an infringement of copyright or child pornography
66. This feature of the Internet is commonly described as the "long tail" phenomenon. See Chris Anderson, The Long Tail: Why the Future of Business Is Selling Less of More, New York: Hyperion, 2006 and Mira Burri-Nenova's contribution to this volume.
67. For a review of the situation for African publications, see Henry Chakava, "Production and Distribution of Cultural Publications in Africa: In Search of Lasting Partners", paper presented at the ARTerial Conference on Vitalizing Africa's Cultural Assets, 5-7 March 2007, at http://www.hivos.nl/index.php/nederlands/english/arterial/ presentations_conference.
68. It should be noted, however, that not the TCE itself, but the performance of it is protected against unauthorized recording, broadcasting and communication to the public under Article 2 and Articles 6-10 of the WIPO Performances and Phonograms Treaty (WPPT), adopted in Geneva, 20 December 1996
69. WIPO, Presentations on National and Regional Experiences with Specific Legislation for the Legal Protection of Traditional Cultural Expressions (Expressions of Folklore), WIPO/GRTKF/IC/4/INF/2, 25 November 2002. See also WIPO, Final Report on National Experiences with the Legal Protection of Expressions of Folklore, WIPO/GRTKF/IC/3/10, 25 March 2002.
70. In the same line, the Provisional Committee on Proposals Related to a WIPO Development Agenda (pcda) (Revised Draft Report, WIPO PCDA/1/6Prov.2, Annex I, Cluster B2, 20-24 February 2006) requests the WIPO Intergovernmental Committee to adopt an internationally binding instrument on the protection of genetic resources, traditional knowledge and folklore as soon as possible.
71. Aborigines and some North American Indian tribes
72. The Development Agenda does not directly address the norm-setting process regarding TCE. It emphasizes, however, the necessity of preserving the public domain, which would also affect the TCE debate. See Provisional Committee on Proposals Related to a WIPO Development Agenda (PCDA), Third Session, Geneva, 19-23 February 2007, PCDA/3/Summary, Annex, Summary by the Chair, at para. 11.