(15) International Herald Tribune, 10/11 February 1996
(16) World Intellectual
Property Organization of the United Nations.
(17) Interview with Bonnie Richardson, MPAA, 2 December 1994
2. less developed
The TRIPs agreement and the other worldwide free trade and investment
agreements mark a clear historical demarcation in the global control
of information and impose, according to John Frow, a definition
of intellectual property rights directly disadvantageous to Third
World countries (Frow, 1996: 89).
adds this to his remark: 'The GATT rules have been fixed to suit
the most powerful trading parties. In the issue area of intellectual
property protection the conventional type of multilateral cooperation
was unsatisfactory to most players. Developing countries and IPR
industries wanted a different arrangement. This evolved under the
auspices of the GATT and was incorporated into the Uruguay Trade
Round accord. The new tradebased practice that now emerges is likely
to mainly benefit the corporate IPR traders (1994: 266).'
reminds on intellectual property rights 'that American companies
stand to gain $61 billion a year from the Third World if U.S. protectionist
demands are satisfied at GATT (as they are in NAFTA), at a cost
to the South that will dwarf the current huge flow of debt service
from South to North (Chomsky, 1993: 3).' A substantial part from
what the South should pay to the North for using intellectual rights
concerns rights on cultural "products", as the arts have
been called in the business world.
There are three fields which should be distinguished. First, there
are the economic consequences. Second, the question should be raised
which contributions to culture should be rewarded. Third, the western
concept of intellectual rights is a foreign notion in many parts
of the world.
consequences for Third World countries of the new worldwide regime
for intellectual property rights on culture must be considered from
two perspectives. First, transnational cultural industries try to
find as much outlets as possible for the cultural products from
which they are the rightholders. Mostly this will be music, films,
soaps etcetera made in the western world. In order to reach this
purpose they will push away works of art which have a local origin.
Krister Malm and Roger Wallis experienced this on Trinidad. 'The
view generally expressed by musicians and others in our 1987-8 interviews
was that the share of local music in the media was as low as 15-20
per cent except during the carnival season (1992: 78).'
One of the reasons
why this could occur was the simple fact that satellites destined
for the United States do not distinguish between the territory of
the U.S. and the Caribbean islands! By this technical spillover
local entrepreneurs could tap into domestic US satellites; after
a while US copyright owners found this could be a source of extra
revenue. Krister Malm and Roger Wallis heard from many Caribbean
policymakers and media operators that they did view this development
with considerable apprehension and anxiety. The question rose: 'How
to protect one's own intellectual property without having to pay
out too much scarce foreign exchange for cultural products coming
from outside into the country?'
was made with mango trees. "If you plant a mango tree in your
garden by the fence and some of the branches hang over into my garden,
then the mangoes on those are mine." Compared to satellites:
"If anyone puts signals into our airspace, then it's our property
- we didn't ask for them" (Malm 1992: 57,199,200). This argument
turned out not to be an effective one because of the threat with
trade sanctions by the U.S.; the United States offered also trade
advantages in the framework of the Caribbean Basin Initiative for
countries who make their policies conform to the intellectual property
regimes and other regulations as desired by the big neighbour (Putten,
percentage of 15 to 20 per cent local music will now, ten years
after the research by Krister Malm and Roger Wallis, still be lower.
It is clear that much more research should be done in order to get
more grip on the takeover of cultural life in the non-western countries
by the big cultural industries, supposed this takes place on such
a scale that one may speak of take-over. Surely there will be big
differences between countries and for the different forms of art
like music, film, television entertainment, dance, theatre, visual
arts and literature. Brasil for example has its own flourishing
industry of telenovela's. There one of the problems is the monopolistic
situation of TV Globo (Amaral, 1994; Burton, 1986; Kucinski, 1994;
Mattelart, 1987; Mazziotti, 1996; Schneier-Madanes, 1995; Vink,
1988). For multinational cultural industries the African countries
are nearly not interesting, for the time being (Bender, 1994: 485).
The second economic
consequence for Third World countries will be the fact that the
transnational industries need thousands of hours of music, films,
and theatrical entertainment and miles of images and texts. With
the liberalization of the telecommunication situation all over the
world there are coming more and more outlets which must be filled
with "content". This means that cultural industries will
try to buy everywhere in the world rights on music, images, and
so on. Also on this issue not enough knowledge is available. Where
do those developments find their peaks? In what proportions? How
are those processes taking place? What are the consequences for
artistic life locally?
As a second
point concerning the intellectual rights in the cultural field the
question should be raised which contributions to culture should
be rewarded. James Boyle describes a contradiction which usually
does not get enough attention. 'The author concept stands as a gate
through which one must pass in order to acquire intellectual property
rights. At the moment, this is a gate that tends disproportionately
to favor the developed countries' contributions to world science
and culture. Curare, batik, myths, and the dance "lambada"
flow out of developing countries, unprotected by intellectual property
rights, while Prozac, Levis, Grisham, and the movie Lambada! flow
in - protected by a suite of intellectual property laws, which in
turn are backed by the threat of trade sanctions (1996: 124-8).'
of ideas and raw materials and the exploitation of markets are rewarded
with intellectual rights; but raw materials and also music and images
as raw materials reach to the zero level concerning intellectual
rights. Jutta Ströter-Bender gives an example in the field
of design. 'For western designers the whole universe of decorations
and images of artists from the Third World constitute an inexhaustible
reservoir by which they serve themselves shameless and for sure
without adequate payment to the source of their "inspiration"
(1995: 45).' It is obvious that more research should be done to
get a clearer picture of the harm being done to cultures of Third
Later in this
article we will deal with the discussion on the granting of collective
rights to works which have not been created by individual authors
which drags on already a couple of decades. How complicated and
at the same time how frightening this issue may turn out to be shows
the example presented by the Indian theatre director Rustom Bharucha.
'One of the unfortunate developments of cultural tourism has been
the influx of fabricated rituals within the cultures of those rituals.
It is bad enough of a ritual from India, for example, is travestied
in the West, but it is worse when this ritual loses its significance
in India itself. The practitioners of many traditional dances and
rituals in India no longer perform for the gods; they perform for
tourists, research scholars and "experts". In payment
for their performance, the actors no longer receive prasad or the
blessings of gods - they get money and, at times, nothing at all.
After all, there is no "copyright" on traditional performance.
So many of them have been videotaped without any acknowledgement
or payment to the performers involved (1993: 37).'
us to the third issue concerning the position of Third World countries
regarding intellectual rights, and specifically rights on music,
theatre, audiovisual creations, texts, images, and so on. The western
concept of intellectual rights is a foreign notion in many parts
of the world. This is the reality. Roland Barthes explained this
already in The Death of the Author: '. . . in ethnographic societies
the responsibility for a narrative is never assumed by a person,
but by a mediator, shaman or relator whose "performance"
- the mastery of the narrative code - may possibly be admired but
never his "genius". The author is a modern figure, a product
of our society insofar as, emerging from the Middle Ages with English
empiricism, French rationalism and the personal faith of the Reformation,
it discovered the prestige of the individual, of, as it is more
nobly put, the "human person" (Newton 1988: 155).'
reality produces nowadays, however, a confusing set of contradictions.
Ronald Bettig reminds that traditionally 'Asian authors and artists
have viewed the copying of their works as an honor (1996: 213-219).'
The western concept of individual authors rights or copyrights undermines
extremely valuable cultural patterns. How this works out and which
kinds of resistance are being developed should be studied more in
detail concerning the different regions in the world and the varied
settings of the cultural life of societies.
Japan had to
change its copyright legislation because it did not give long enough
profit to western rightholders. 'Current Japanese copyright law
does not protect foreign recordings made before 1971, meaning that
Western record companies, by their estimates, are losing millions
of dollars a year in royalties from copying of tunes that are still
highly popular.' The headline of the article on this matter in the
International Herald Tribune was: 'U.S. Takes Music-Piracy Charge
Against Japan to WTO (15).' A cultural difference, a different opinion
about how long rights should hold, has been interpreted as "piracy."
One may wonder why Japan did conform at the end to the American
demands. Specially interesting is what the arguments for and against
have been in Japan itself.
One may doubt
whether legislation against piracy may work in countries in which
individual intellectual rights are a foreign notion; this is the
observation of Richard Barnet and John Cavanagh. 'But such laws
work only as well as local culture permits. In many parts of the
world the tradition is that music belongs to the community, and
edict to treat a song as a piece of property is greeted by ordinary
people with puzzlement and anger (1994: 142).'
and Roger Wallis refer to their government spokesman in Jamaica
who could see no simple means of redressing the problem. "There
are many difficulties. What is a folk song? What is the correct
arrangement, and who owns it? It's difficult to put the WIPO (16)
Tunis Model Law into practice."' And they conclude: 'Any functioning
music copyright legislation for works which are protected by the
terms of, say, the Berne or the Universal copyright conventions,
presupposes the existence of functioning registers of works and
copyright holders. This is a major problem in any country with a
large amount of musical creative activity where copyright is not
institutionalized (1992: 59).' And, one may wonder, should it be?
Later on in
this article we will be confronted extensively with this question
in general terms. But for now it is important to see how vivid cultural
practices may get frozen when copyright will get more important
than the stream of ongoing creativity, which is actually a universal
human phenomenon. A good example - which is true also for most traditional
and popular music cultures such as calypso, samba, rap, and so on
- is the Algerian Raï music. Bouziane Daoudi and Hadj Miliani
emphasize 'that the same theme may know as many variations as there
are performers.' The base is shared knowledge which refers less
to a repertoire of existing "texts" but more to a whole
of social signs (el mérioula, el mehna, el minoun, e z'har,
It is difficult
to recognize the true author - in the western sense of authors rights.
The raï has no author. Until last years, which brought the
entrance in the western market system, the singers "borrowed"
songs or refrains from each other. The public added spontaneously
words to a song. In the practice of the singers, the chebs and the
chabete, theft, pillage, plagiarism of texts does not exist. It
is a form of music which depends from the circumstances, from period,
place, or public.' Bouziane Daoudi and Hadj Miliani describe the
raï as 'a continuum of a strongly perturbated social imagination
copyright conception is starting to destroy this continuum by eliminating
those social and cultural processes in many societies. The songs
will be frozen and will be the property of rightholders who are
mainly or only interested in profits, not in any form of local social
and cultural life. This is a pity because the raï music and
comparable forms of music in non-western societies are - or should
we say, were - essential components of the social and cultural life.
Who is taking this away will make a given society a poorer resort
of human life. To mention this does not refer to any romantic vision
about natural states of well being of primitive societies. There
exist no primitive societies in the world, and certainly no societies
which are on the sunny side only. Any society is full of conflicts
and contradictions which may be reflected in the arts in other ways
than may happen in the normal daily life. It is a loss for any society
when this cannot happen anymore or not sufficiently.
The real distinction
is between societies where the arts play a vital role in social
and cultural life and those societies where the arts are more or
less coming from outside the daily huzzle and buzzle and are presented
as products to consume. On this subject - the transition from situations
where the development of the arts essentially belonged to the social
and cultural life to situations where intellectual property rights
are the driving force behind cultural production and distribution
- more research should be done.
Should we thus
forget about concepts like intellectual property rigths and piracy?
At this moment this question seems to be less easy to answer than
usually will be done in the western world. At a conference on the
cultural industries in the Eastern European countries in transition,
Moscow, June 1993, the Finnish researcher Vesa Kurkela presented
a paper Piracy as innovation in post-communist popular music. The
cultural meaning of unauthorized copying revised. He started his
presentation with the common idea we, in the western world, all
have in mind concerning intellectual property rights. 'As everybody
may know, unauthorized copying is a bad thing in all music business.
It can be claimed with good reason that piracy also prevents the
development of the local record industry. It is no wonder that there
are various activities carried out by multinational music industry
and national copyright organizations to fight against it. . . .
There are, however, at least two different forms of unauthorized
copying and, accordingly, two different meanings of the term piracy.
The first is the most common - it refers to business making of which
the multinationals are mostly afraid: unauthorized copying and distribution
of global megahits to wide audiences. The second meaning however
has been often forgotten. With the aid of cheap analogue cassette
technology many local music makers especially in poor countries
can produce and circulate their own music and even give birth to
new interesting popular genres.'
During the communist
period musical innovation could take place by unauthorized copying
and continues to happen this way. Moreover, it 'is important to
note the very function of unauthorized copies here: the cassettes
are not primarily produced for making money. The main purpose is
promotion. With the aid of pirates local dance bands and artists
can get more fame among local audiences and, accordingly, more gigs
and other public appearances.' (Kurkela, 1993)
which will be raised later in this article find already partially
an answer in the observation by Vesa Kurkela. First, by unauthorized
copying musicians become known, are getting performances and thus
may earn their money. Otherwise only one or two famous artists would
get richer and only the copyrighted music would be spread, which
has been produced by strong cultural industries. The basic condition
is of course that there is enough demand for life music. Second,
the argument goes many times that copyright is necessary to stimulate
artists (and other inventors) to create. However, the contrary may
happen, so called unauthorized copying may produce a vivid cultural
climate in which innovation is a selfevident result. One may even
imagine that such an open cultural climate may enhance a greater
freedom of communication.
It is interesting
to note that western advocates for strong copyright laws and practices
always present the argument that it is in the self interest of non
western countries to fight piracy. Bonnie Richardson, spokeswoman
of the Motion Picture Association of America: 'It is not just an
issue of other countries having to protect American intellectual
property, it is also fundamentally of interest to local legitimate
videostores, local legitimate cinemas, local producers of songs
and films. There is a community of local interests too that are
hurt badly by piracy.' (17) The observations by Vesa Kurkela and
Krister Malm and Roger Wallis may make clear that it is more complicated
pressure on poorer countries to fight piracy, anyway this may be
defined, brings them in the situation that they have to spend many
resources for the enforcement of intellectual property rights instead
of the enforcement of other laws which are perhaps more important
for the development of their economic, social and cultural life
(Cohen Jehoram, 1996: 44).
It may not amaze
that it was not selfevident for Third World countries that the intellectual
commons of their societies would be brought under an international
treaty by which they would be hindered to develop their own policies
in this sensitive field. Friedl Weiss gives this overview of the
struggle between North and South: 'Although there is considerable
antecedent and multilateral treaty practice on industrial and intellectual
property rights (IIPRs), the subject matter, as is well known, became
a matter for multilateral negotiations in the Uruguay Round only
upon the insistence of industrially advanced countries (IACs), especially
the United States. Developing countries (DCs) were at first extremely
reluctant to enter into such negotiations as there were scarcely
any common ground between them and IACs, in economic philosophy,
objectives or regulatory tradition. Leading DCs, for instance, considered
it inappropriate to establish within the framework of the GATT any
new rules and disciplines pertaining to standards and principles
concerning the availability, scope and use of intellectual property
'Consequently, they emphatically rejected any idea of integrating
the TRIPS Agreement into the GATT itself which, they claimed, played
only a peripheral role in this area precisely because substantive
issues of IPRs are not germane to international trade. On the other
hand, DCs were content with the integration of substantive standards
of the major IPR treaties into the TRIPS Agreement. In the end the
deadlock in IPR negotiations was overcome through a combination
of allowing DCs and LDCs more transitional time for achieving higher
standards of IPR protection and of concessions in other areas, notably
textiles and apparel trade (Cohen Jehoram, 1996: 8,9).'
is important in order to know what the precise considerations were,
and still are, of Third World countries concerning the intellectual
rights in the cultural fields. In The Challenge to the South, a
report written under the chairmanship of the former president of
Tanzania, Julius Nyerere, bitter words have been spoken about TRIPs.
'The objective clearly is to install a system that would oblige
developing countries to restructure their national laws so as to
accomodate the needs and interests of the North. This initiative
seeks to expand the scope of the system governing intellectual property
rights, extend the lifetime of the granted privileges, widen the
geographical area where these privileges can be exercised, and ease
restrictions on the use of granted rights (1990: 254,5).'
Diversity, the Report of Unesco's and United Nations' World Commission
on Culture and Development suggests that a better balance should
be found. 'The GATT accord, trough its Trade Related Intellectual
Property (TRIPs) agreement, has caused a subtle reorientation of
copyright away from the author towards a tradeoriented perspective.
One challenge will be to maintain the balance between interests
of countries exporting copyright and those of countries that import
it, especially in the developing world. Defending the legitimate
interests of the latter, while difficult, should be pursued through
the establishment of adequate protection.' (Pérez de Cuéllar,
the Commission not only the intellectual rights of Third World countries
should get a more adequate protection, also the position of the
real authors - creators or performers - deserves more attention.
This will be the subject of the next part of this article. After
all, the tradeoriented perspective of TRIPs is changing their position.