Cultural diversity

Publications and Studies

Relationship of the future UNESCO convention on the protection and promotion of the diversity of cultural expressions to intellectual property rights

Coalition française pour la diversité culturelle, Paris, juillet 2005 – 2005/07

Certain rights owner organizations have reservations about the future UNESCO convention due to the risks the new international law would pose to the level of rights protection for intellectual property rights. Further to the issue, French Coalition for cultural diversity (FCCD) released this analysis asserting that while the protection of copyrights and other ownership rights is a fundamental requirement of professional cultural organizations, including many rights owner organizations, the future UNESCO convention on the protection and promotion of the diversity of cultural expressions, which will be presented for adoption at the 33rd UNESCO General Conference in October, does not challenge this fundamental requirement.

FCCD pointed out that while the preliminary draft convention on the protection of cultural content and artistic expression prepared by independent experts contained a number of references to intellectual property in its preamble, as well as in definitions in articles 4 (cultural goods and services) and 7 (obligation to promote the diversity of cultural expressions), the debates of the first two sessions of intergovernmental meetings of experts in September 2004 and February 2005 made it clear that these references posed a problem. While examining the text, for each amendment proposed to respect intellectual property rights, counterproposals were made to weaken these rights (e.g., undue appropriation) or create new rights outside OMPI (e.g., traditional knowledge) or subrights.

According to FCCD, these amendments risked leading to a cultural diversity convention whose intellectual property protection standards were inferior to those of internationally recognized WIPO conventions. At the third and final session of negotiations in June 2005, many states (…) held that this debate on intellectual property under the UNESCO convention could only weaken international standards. They therefore chose to support elimination of all provisions relating to intellectual property in the body of the text and simply stress the importance of intellectual property as one of the foundations of cultural diversity in the preamble.

That is why the draft convention that will be presented for adoption at the 33rd General Conference in October will contain no provisions of note—neither substantive nor declarative—regarding intellectual property. This future UNESCO convention and WIPO conventions on intellectual property will therefore have completely distinct areas of application. Because of this divide, the future UNESCO convention is completely neutral on the subject of intellectual property. It will therefore neither challenge intellectual property nor reaffirm or strengthen the international protection of intellectual property (to the disappointment of many), maintains FCCD.

In addition, Article 20 of the UNESCO draft convention, on the relationship to other instruments, restates a classic principle of international law in paragraph 2, indicating that nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties. FCCD therefore concluded that it will not be possible for signatories to the UNESCO convention to use this convention to challenge existing rights under WIPO treaties or WTO’s TRIPs agreement to which they are parties. [05-26]