Many artists, law and policy makers, civil society activists and scholars who are concerned about the protection and promotion of cultural expressions have a blind eye to the international intellectual property system. They only see the benefits of this system for the cultural sector while ignoring its negative sides.
There is a widespread taboo in the cultural sector against critically analysing and discussing the aspects of the intellectual property system that are inconsistent with the very purposes and objectives of the 2005 UNESCO Convention on cultural diversity; particularly, in relation to the “shall endeavour” obligations set forth by its article 7. Pursuant to this provision, the Parties shall endeavour to create in their territory an environment that encourages individuals and social groups to create, produce, disseminate, distribute and have access to their own cultural expressions, as well as to diverse cultural expressions from within their territory and from other countries of the world. The Parties shall also endeavour to “recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions.” In other words, Parties shall contribute to empowering individuals and social groups to create cultural expressions, and to have access to the diversity of these expressions. Very importantly, the Parties should consider artists and others involved in the creative process as key contributors to the diversity of cultural expressions.
This paper further examines the idea of “variable geometry in copyright duration” as a possible new solution to implement article 7 of the 2005 UNESCO Convention. This proposal that can be summarized as follows:
The terms of copyright protection for cultural goods and services, including entertainment, shall be subject to variable geometry: the higher the marketing investments the shorter the copyright duration of protection.
In a first stage, copyright terms shall be reduced down to the minimum of 50 years according to Article 12 of the TRIPS Agreement when the protected works enjoy high investments in their advertisement.
In a second stage, the EU shall propose an amendment of this provision at the WTO aimed at further reducing the terms of protection for copyrighted works enjoying predatory marketing, for example to one year after the first public release of the work.
The full duration of copyright protection provided by the copyright duration directive shall continue to apply to works that enjoy none or little marketing investments.
This new idea shall provide a level playing field for talents and contents from all cultures by imposing a desincentive for excessive marketing that silences talents and contents from diversified cultural origins.
This proposal is arguably in line with the rationale of copyright protection. The EU is currently contemplating an overhaul of certain elements of the copyright system in order to adapt it to the digital age. We suggest taking this opportunity by mainstreaming cultural diversity and introducing variable geometry of copyright duration in the context of this reform.
For more information on this proposal aimed at improving access to culture and reinforcing competition on a level playing field via copyright, please refer to the long version of the study for the European Parliament on the implementation of the 2005 UNESCO Convention on cultural diversity at www.diversitystudy.eu – see section “Main Study” (Introduction and Study Paper 2B, version of November 2010) as well as to the video discussion by Prof. Fiona MacMillan (University of London) in the section “Stakeholders' Dialogue”.