chapter  5
29 Pages

Development, cultural self-determination and the World Trade Organization

ByFIONA MACMILLAN

The concept of development comes with a complex and, arguably, somewhat dubious baggage. It was born, as Tony Anghie (2000: 243) has argued, at the end of the colonial period and elevated into a ‘science’ based on a notion of uniform and neutral economic rationality under which ‘advanced’ or ‘developed’ countries would aid ‘backward’ or ‘developing’ or ‘less-developed’ countries to bridge the economic gap (Alessandrini 2007: Chapter 1). By some lucky coincidence, bridging this economic gap would have the side effect of providing developed countries with access to raw materials in ‘developing’ countries as well as access to new markets (Arrighi 1994, Alessandrini 2007). Since this instrumental and pragmatic emergence, the concept of development

has, at least in some quarters, itself developed in two notable ways. First, it has transcended its purely economic focus, moving to a more holistic, but also highly contested, concept with a variable content (e.g. World Commission on Culture and Development 1996, Sen 1999). Second, and consequentially, it has transcended its focus on the gap between so-called advanced and so-called backward countries. In this process of transcendence it has become a ubiquitous carrier of multiple meanings. The problem, of course, with ubiquitous carriers of multiple meanings is that the loss of focus implied by this very ubiquity tends to deprive them of much in the way of substantial meaning. At the end of the previous century and in the early stages of this century,

there has been a tendency, which is particularly apparent in international agreements, to refer not simply to ‘development’ but to ‘sustainable development’. There seems to be some kind of loose consensus that this refers to development that satisfies the needs of the present while not compromising the ability of future generations to satisfy their needs. While this seems to tell us something about the meaning of the qualifier ‘sustainable’, it still leaves us with the problem of the meaning of ‘development’. Thus, appeals to ‘sustainable development’ do little to clarify the situation. Further, attempts to understand concepts of development, or sustainable development, through an examination of their use in international legal instruments are not necessarily enlightening, as this chapter

seeks to show by focusing on the relationship between two international agreements, both of which purport to be grounded in the concept of sustainable development. The chapter will seek to demonstrate that the two agreements, the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005; hereinafter ‘Convention on Cultural Diversity’) and the Agreement Establishing the World Trade Organization (1994; hereinafter ‘WTO Agreement’) seem unlikely to be appealing to a common concept of development, sustainable or otherwise. A possible consequence of this finding is that a mismatch exists between concepts of development used in the realm of public international law and in the realm of international economic law.1 If such a mismatch exists, it is likely to be contributing to the hollowing of the concept of development in international law discourse. As is clear from the famous UNESCO study, Our Creative Diversity (World

Commission on Culture and Development 1996), the UNESCO Convention on Cultural Diversity (2005) is based on a broad concept of development, which transcends economic development and is focused on the enhancement of effective freedom of choice for individuals, embracing concepts such as ‘access to the world’s stock of knowledge … access to power, the right to participate in the cultural life of the community’ (World Commission on Culture and Development 1996: Introduction). In other words, it owes much to Amartya Sen’s (1999) famous exploration of ‘development as freedom’ (see also Faundez in this volume). The provenance of the concept of development in the WTO Agreement (1994), which provides the legal framework holding together the multilateral agreements that comprise the WTO, is less clear. Nevertheless, in a notable departure from the Preamble to the General Agreement on Trade and Tariffs (1947), which is otherwise largely reproduced in the preamble to the WTO Agreement, sustainable development has made its way into the first paragraph of the WTO Agreement.2 Despite the attractiveness of the idea, the association in this chapter of the WTO regime with the regime established under the UNESCO Convention is not purely random, nor is it merely based on the coincidence of the expression ‘sustainable development’ in both legal instruments. Since it has always been clear that the specific motivation for the UNESCO Convention was an attempt to remedy the lack of a so-called cultural exception in WTO law (Hahn 2006: 51520, Graber 2006: 554-55), it follows that this Convention must purport to address common factual (if not legal) territory to that traversed in the WTO Agreement. Since it appears that the protection of cultural diversity is the key aspect of the

concept of development or sustainable development in the UNESCO Convention, the specific business of this chapter is to consider the relationship between the international legal regime established under the Convention and the international copyright system, which is embedded in the law of the WTO by virtue of its Agreement on Trade-Related Intellectual Property Rights (1994; hereinafter ‘TRIPs Agreement’; see also Vadi in this volume).3 In order to examine this relationship, the chapter looks at six issues. First, it considers the extent to

which international law, both before and after the coming into force of the UNESCO Convention (2005), confers a ‘right’ to cultural diversity. It is argued that the UNESCO Convention may be regarded as articulating and building upon rights previously laid down in the human rights covenants to the Charter of the United Nations. A particular concern of the chapter becomes, therefore, whether the relationship between the UNESCO Convention and the international copyright system is likely to show any marked differences from the relationship that has existed to date between the human rights covenants and the copyright system. As a basis for arguing that some relationship should exist between the UNESCO Convention and the copyright system, the next section offers some views on the extent to which the concept of culture in the Convention interacts with the concept of culture with which copyright is concerned. The chapter then turns to a more detailed analysis of the relationship between copyright and cultural diversity in the fourth section, followed by a consideration of the extent to which the entrenching of the international copyright system in the WTO has affected this relationship. The sixth section broadens this consideration by arguing that other provisions of WTO law exacerbate the negative effects of the international copyright system on cultural diversity. Finally, the chapter comments upon the extent to which there is a clash between the ‘right’ to cultural diversity, if it exists, and the international copyright system. The chapter concludes with some observations on the significance of this clash in relation to attempts to understand the content of the expressions ‘development’ and ‘sustainable development’ in international law.