Sunday, 4 April 2010

Developing countries, moral rights and cultural heritage

On 23 March SABIP hosted an event to explore possibilities for new UK moral rights legislation (see IPKat post). The event began with a session in which the different moral rights systems of various countries were reviewed. These talks have now been uploaded to YouTube. Dr Makeen Makeen's overview of developing countries is particularly fascinating. He explained that:
'In the last fifteen years the “developing countries” have been incredibly active in enacting new pieces of legislation either because they never had copyright law before and they were introducing copyright law for the first time or to expand the scope of the already existing law. Why did they do that? They did that because in 1994 we had what's sometimes referred to as a “swear word” in the developing countries, which is TRIPS. If you want to join the WTO you have to comply with the requirements of TRIPS – otherwise you would become one of the “them”, so all the developing countries wanted to be one of the “us” and they passed new laws to comply with TRIPS. Although TRIPS did not ask any developing country to offer moral rights protection, most of the developing countries who enacted new laws or expanded the already existing laws in the last fifteen years offered a very comprehensive type of moral rights protection.'
Their reasons for doing this were:
1. to sell TRIPS to their own public. 'So whilst their own public were saying, Oh, we are selling out all our national interests ... We are going to get nothing out of protecting foreign copyright works,' moral rights were used as a way to convince their public 'that copyright is not a harmful thing'.
2. There is more to gain than to lose from moral rights.
3. Some countries hope they can protect their cultural heritage through moral rights. On 7 May WIPO is discussing a text to protect traditional knowledge and expressions of folklore. The text is recognizing a type of moral rights to protect cultural heritage.

Other interesting points include: developing countries either followed a civil law system or the common law copyright system, but not according to colonial links. In civil law countries, there are two different standards for the right of integrity, one for their own nationals and another for foreigners: the right is applied subjectively for their own nationals (you don't have to prove your honour is damaged), but objectively to translations so the countries can reliably gain access to foreign works.

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