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

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 I
CULTURAL 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 II
CULTURAL HERITAGE
according to international treaties
INTANGIBLE
TANGIBLE

increasingly threatened by destruction


causes:


traditional causes of decay
change of social and economic conditions
threats of deterioration, disappearance
and destruction

causes:



is of outstanding interest and therefore
needs to be preserved as part of the
world heritage of mankind as a whole



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
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;

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.
RELATION
CH – 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
RELATION
tangible 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...?
RELATION
intangible 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 I
IP – CD
according to international treaties
CULTURAL DIVERSITY
IP

private rights

common heritage of humanity

protects works, performances, etc.

protects cultural expressions

economic and moral rights

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


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)


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


no regulation on CD

aim (proclaimed in WCT and TRIPS
only):



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)

promotion of the applicability of the
basic principles of GATT 1994 and
of relevant international intellectual
property agreements and
conventions (TRIPS)

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 nonsubordination to other
international treaties
RELATIONSHIP OF CD CONVENTION TO
OTHER TREATIES:


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,



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



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

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
THANK YOU
FOR YOUR ATTENTION!