[Ecommerce] Prel. Analysis of the UNESCO Convention on Cultural Diversity by K. Ravi Srinivas

[Manon Ress]

A Preliminary Analysis of the
UNESCO (Draft) Convention on Cultural Diversity
K. Ravi Srinivas


This paper is a preliminary analysis of the Draft Treaty and is more a
work in progress than a finished product. The relevant footnotes and
references will be incorporated in the next version.

The definitions of culture, cultural diversity and cultural expressions
are not adequate. One serious lacuna is the underestimation of knowledge
like Traditional Ecological Knowledge, linguistic diversity and
bio-cultural diversity. The term cultural expressions is totally
inadequate as if one goes by this definition a shamans or traditional
healers knowledge and expressions wont be considered as cultural
expressions.

4,c states =93they generate or may generate, intellectual property,
whether or not they are protected under existing intellectual property
legislations=94. The basic problem with this approach is it is heavily
property oriented whereas all cultural goods and services (what an
awkward phrase) are not property related. They need not stem from
property related relationships nor they be considered as a part of a
property or as property. Culture is a question of commons and sharing as
well. No body can claim that culture is his or her property. It is the
non property nature of culture that still makes it be enjoyed by all
without being owned by none. All outcome of human labor that need human
creativity for production need not result in property rights, leave
alone intellectual property. For example throughout the human history
epics have been written, transmitted, conserved and used in many ways
without any property rights on them. In India generations have
transmitted orally the Vedas, the sacred texts of the Hindus over few
thousand years without anybody claiming any property right over them.
Culture is not something one can buy in a super market or protect by
exclusive IP rights always. The human labor and creativity themselves do
not arise from no where or operate from an Archimedean point. We are all
immersed in culture in one way or other. We contribute to culture as
well as use it. When I use the imagery of a poem in Sangam poetry in a
creative work of today to express something I draw on the past to use it
for the present and future. Whether it has value or not it is my
contribution to culture. It is neither a good nor a service and is an
expression. There is a deep problem in the approach towards cultural
expressions in the draft because cultural content is embodied in more
than one way and not all these may be cultural goods and services. A
simpler but wider definition of cultural expression is needed. The
cultural expression is not frozen time and the meaning can change
depending upon the context, the imagery of yesteryears may mean totally
a different thing today. It is this nature of culture, the amenability
of texts, voices, symbols and expressions to different or multiple
meaning in different contexts, both temporally and spatially which makes
us recreate and reinterpret the  Greek Tragedies written thousands of
years ago to totally different contexts today which would not have been
foreseen at that time. This is how a creative expression although rooted
in a specific context and time, is capable of getting appreciated in
different cultural contexts.


A creative artist thus can borrow from different cultural expressions
and still create something new and artistically enchanting without
diminishing the originals in anyway. In other words culture is a commons
from which we can draw and refashion it differently and add to culture.
Somebody can improvise upon mine and add to the culture. So while the
outcome may express some meaning we cannot attribute any cultural value
to it today or tomorrow because cultural value is not a fixed quantity.
Over the ages the cultural value of a text or expression changes. In one
sense it is difficult to speak of cultural value because there is no
universally agreed criterion to assess the value of any expression or
creative output. Texts that were once considered as second rate or not
even worth reading may become important in a different context. Who
would have thought that an academic work by a scholar in Australia would
result in a new field subaltern studies and the archival materials and
narratives, both oral and written could be read so differently and
interpreted in new ways.

Once it was considered that a learned person is one who is well versed
with classics. Today such a notion is not accepted. Hence cultural value
is a nebulous concept and the notion of creativity has also undergone
changes over years. While saying this we ignore the debates over the
creativity embodied in computer generated art or do not go in to the
questions whether computers or such devices are creative and if so how
do we attribute creativity to them.

The draft uses some awkward phrases that sound like a hybrid between a
frog and a bird. For instance it talks of cultural capital. Can we talk
of epics or classics as assets or try to call folklore and performances
as assets. If one goes by this definition then the question arises =96 is
all culture a cultural capital and if not what is that non cultural
capital of the culture. Are value systems and beliefs part of cultural
capital. One does not inherit culture in the sense of one inheriting a
property. Often a portion of the culture is lost or is left uncared and
is not transmitted properly or is corrupted or diminished in
transmission, will that be cultural capital. Languages that are facing
extinction, the biocultural diversity that is under threat, the
languages that are no longer spoken but there are records or artifacts
or other evidence about their existence once upon a time =96 are these
part of cultural capital. These are not assets in one sense. Often what
is dead or gone is also part of the culture and the idea of cultural
capital is based on a false notion of culture. This hybrid between
culture and capital is inadequate to describe culture and is based on a
notion that human creativity and resources always result in assets. All
works of art or all customs cannot be assets. One follows or adopts a
custom not because of considering them as an asset but because of other
factors. Customs can be cultural liabilities as well. All that is handed
over from past, cared for in the present need not be handed over to the
future. Something like FGM might be handed over from past but need not
handed over to the future nor need to be cared for or conserved in the
present. The cultural dynamics is very complex and what is thought as
lost or declined often springs back from death and survives well enough
to be robust for the future. Communities revive lost cultural practices,
languages that are on the verge of extinction, modify rituals of the
past or use the cultural heritage in many ways. These are done without
subscribing to the idea of a cultural capital or considering them as
assets. So in my view the idea of cultural capital needs to either
dropped or suitably modified and given a different name.

Article  6. 2(a) speaks of reserving a certain space for domestic
cultural goods and services. This is not clear and what space is
envisaged here is not clearly stated. Is it economic space , i.e.
government would allocate a portion of its budget on cultural activities
for domestic cultural goods and services or whether government can
reserve exclusively some activities for producers of domestic cultural
goods and services, for example reserving text book production or
reserving some sector like children=92s magazines for local publishers.
Are such reservations, of whatever space, are appropriate under GATS or
WTO rules. In case of language used can a government favor one language
over another in its policies on cultural goods and services and if so
will it not amount to denying some producers some rights. The question
becomes more complex when there is a national official language and
there are many other languages which are recognized as languages but not
as the official language. As it has been pointed out in case of Africa
often the policy on national official language had negative impact on
other languages, particularly in case of languages which were facing
extinction or which were spoken by a minority or ethic groups which were
marginalized. I am afraid that this provision does not seem to be
sensitive to the complex issues and seems to suggest an easy but
controversial solution to the question of promoting and protecting
cultural diversity.

Article 7.1.b talks about opportunities to have access to cultural
expressions, goods and services representing cultural diversity in other
countries of the world. The key word here is access to and what is meant
by access is not explained here. Access is possible through non
commercial non trade interactions also. But reserving a certain space
for domestic cultural goods and services and opportunities to have
access to cultural expressions etc from other countries need not be
complementary but can be contradictory.   Whether the access is a
qualified access or an access that can be absolute is not clear. Access
is possible by massive imports and distribution and in that case the
role of trade policy becomes an important factor. If the trade policy
aims at promoting access while domestic cultural policy aims at
reservations for local producers then there is bound to be a conflict.

Article 7.2 (a) mixes up so many matters that and it lacks coherence.
The legal and social status of the creators and artists has very little
to do with international existing instruments (sic) and it has more to
with local conditions, cultural values and their reputation or standing.
  What international instruments the provision refers to is not clear.
What exactly is meant by =93legal and social status=94, legal status as
creators can be recognized by instruments of law but that by itself need
not confer any social status perhaps it cannot. And can any
international instrument recognize social status or decree that social
status of creators and artists should be this and that and if so what is
the criteria. The term artists and creators has not been defined or
elaborated upon but it does not seem to consider communities and groups
as creators. What role existing international instruments can play in
nurturing the diversity of cultural expressions. Cultural expressions
and cultural diversity predates the formation of League of Nations or
U.N and what is the relationship between international instruments and
diversity of cultural expressions. As far as I know there is no
international instrument that explicitly states that its objective is to
nurture diversity of cultural expressions. The conformity as assumed by
this provision is not only vague but also may not exist.

7.2.(b) assumes that obligation to respect and enforce intellectual
property rights , particularly the existing international instruments is
linked to the obligation to promote diversity of cultural expressions or
forms part of the larger obligation to promote diversity. This
assumption has to be contested. The aim of international IP instruments
is to protect the interests of IP holders and to ensure that countries
abide by some minimum norms in protecting IP rights. It has nothing to
do with diversity of cultural expressions. Diversity of cultural
expressions is an outcome of many processes and expressions of cultural
diversity do not depend upon IP rights. If at all there is a rationale
for protecting IPRs it is certainly not the obligation to promote
diversity of cultural expressions. Not all cultural expressions that
contribute to that diversity need be covered by IPRs. To what extent
IPRs contribute to enhancing the diversity of cultural expressions is a
debateable point. On the other hand stronger IPRs in fact prevent others
from using cultural expressions protected by IPRs for enhancing the
diversity of cultural expressions. For example copyright terms that last
longer ensure that a work is not available from public domain for many
years and thereby reduce the scope for using them for enhancing
diversity of cultural expressions. Similarly copy rights create problems
for accessing the protected materials and thereby reduce access to
cultural expressions. Unfortunately the provision in the draft has
ignored these realities but talks of measures against piracy. Here again
what constitutes piracy and what does not constitute piracy is a matter
of debate. As IPR regimes define what is permissible and what is not
differently in different
nations the measures against piracy cannot be universal but have to be
examined in a particular context. If the idea is that piracy per se is
wrong or is against the diversity of cultural expression then the
historical experience has been otherwise. Even a cursory look at the
history of copy right would show that piracy had been an accepted
practice in some countries in different circumstances. Again what is
piracy and are the current IPR regimes offer adequate protection against
all form of piracy. The indigenous groups and others claim that current
IP regimes encourage cultural misappropriation and biopiracy.
So I think that 7.2 is irrelevant and all the more irrelevant under the
heading Obligation to promote diversity of cultural expression. It is
better that it is dropped in totality.

Article 12.2 c, d talk of facilitating wider access to global market and
foster the free circulation and mobility of artists and creators. The
intention is good but the real issue is whether there is any
relationship between facilitating wider access to global markets and
protection and promotion of diversity of cultural expressions. What role
can markets play in this task and what sort of interventions governments
can make in this. The draft is based on some assumptions like wider
market and international distribution networks per se are good and
desirable for cultural diversity. It is important that understanding
about other cultures and cultural diversity is promoted and whether
wider access will result in this is an issue that needs to be studied.
What are the implications of GATS for these provisions is not clear.

The Article 14 is very problematic because under the guise of
encouraging co-production it enables foreign productions to be
considered as national and thereby facilitate access to aid. This goes
against the principle of cultural exception to trade and this will
affect countries which have some scheme for financing, partially or
fully, film production. Normally such an aid is reserved for local film
producers and in a country like India this aid is given on a selective
basis to encourage films that otherwise would not be made because they
may not have commercial appeal or to promote films are socially
sensitive and to encourage experiments in film making and aesthetics.
But to consider foreign productions as national is problematic on more
than one ground. The foreign productions might be in a commanding or
dominating position in a market whereas the local films may not be able
to compete with them. Korea has a rule that locally made films have to
be run for a minimum no. of days per year i.e. 146 and this is not
acceptable to Hollywood which is challenging this. (IHT 14th Nov 2004).
But if the foreign productions are considered as national, even if they
are co-productions such quotas will be applicable to co-produced films.
The co-production and co-distribution agreements may have more to do
with market sharing or producing for two markets than with promotion of
diversity in cultural expressions. The Article assumes that all
co-production and co-distribution is good for promotion of diversity in
cultural expressions.

Conclusions
The draft suffers from many problems =96 both conceptual and practical. It
is based on some premises which need to be challenged. The draft is too
state centric and the problem is not identified by the Draft and the
Draft conflates some issues. Regarding IPRs the Draft is not a good
draft as it skirts the real issues and puts forth a na=EFve understanding
about IPRs , cultural creativity and cultural expression. There are some
provisions that may not be compatible with GATS and some are not
compatible with the idea of cultural exception to trade. Frankly
speaking this Draft offers very little in terms of the much needed
solutions and is state centric and it gives some simple solutions to a
complicated issue. I think that even if signed by the states and
ratified it will not be of much use in fulfilling the stated objectives
but some provisions need careful analysis and developing nations should
not commit to this without understanding the implications.


  Post-Doctoral Fellow, South Centre, Geneva. Tel: +41 22 791 80 50
Fax: +41 22 798 85 31
  Email :  HYPERLINK "mailto:srinivas@southcentre.org"
srinivas@southcentre.org
This article is more a work- in -progress than a completed paper. The
views expressed in this article are expressed in my personal capacity
and they need not represent views of any organization or institution or
group. Comments are welcomed.

--
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org

Consumer Project on Technology in Washington, DC PO Box 19367,
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