Relations between Copyright Cultural Heritage Protection Regulations and

Relations between Copyright, Cultural Heritage Protection Regulations and Cultural Diversity Romana Matanovac Vučković Faculty of Law, Zagreb ALAI Conference, Dubrovnik, 6 -8/10/08

INTERNATIONAL LEVEL - principles n cultural heritage n cultural diversity n intellectual property rights

TANGIBLE CULTURAL HERITAGE n n 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 n n n “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 n Other international instruments: n n 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 I CULTURAL HERITAGE according to international treaties TANGIBLE n n monuments, groups of buildings, sites other immoveables and moveables INTANGIBLE n n 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: n n n 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 II CULTURAL HERITAGE according to international treaties INTANGIBLE n increasingly threatened by destruction n n causes: n n traditional causes of decay change of social and economic conditions threats of deterioration, disappearance and destruction n causes: n n n is of outstanding interest and therefore needs to be preserved as part of the world heritage of mankind as a whole n n n 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 III CULTURAL HERITAGE according to international treaties INTANGIBLE n to identify, protect, conserve, present, transmit to future generations n n 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; n to safeguard n n n 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: n n (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.

RELATION CH – IP according to international treaties CH n n tangible – no prejudice to national property rights intangible – no prejudice to international IP treaties IP n no regulation on its relation to CH

RELATION tangible CH – IP according to international treaties n n 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 n alterations, destruction , reproduction. . . ?

RELATION intangible CH – IP according to international treaties PROPERTY RIGHTS n n 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 n n n 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 I IP – CD according to international treaties CULTURAL DIVERSITY IP n private rights n common heritage of humanity n protects works, performances, etc. n protects cultural expressions n economic and moral rights n 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 II IP – CD according to international treaties CULTURAL DIVERSITY IP n n 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) n n 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

RELATION IP – CD according to international treaties IP n n no regulation on CD n aim (proclaimed in WCT and TRIPS only): n n n CULTURAL DIVERSITY 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) n promotion of the applicability of the basic principles of GATT 1994 and of relevant international intellectual property agreements and conventions (TRIPS) n explicit relation to IP as important for those involved in cultural creativity aim: n n public policy objective to protect and safeguard CD CD is corrective to multilateral and bilateral agreements on international trade: n principles of mutual supportiveness, complementarity and nonsubordination to other international treaties

RELATIONSHIP OF CD CONVENTION TO OTHER TREATIES: n n 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, n n n Article 20 of the CD Convention: (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 DIVERSITY CULTURAL HERITAGE n n n public interest n importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development (UNESCO Convention) n protection and safeguarding of cultural heritage is prerequisite for the protection and development of cultural diversity n 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 – CD according to international treaties - complementarity artistic creation copyright cultural heritage cultural diversity

RELATIONS: IP – CH – CD in practice - mutual impregnation copyright cultural diversity cultural heritage

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