Copyrights: a choice of no-choice for artists and third world countries; the public domain is losing anyway, by Joost Smiers

(19) Lury, 1993: 27 quotes Rosalind Krauss.

(20) Interview with Rob Scholte, De Groene Amsterdammer, 18 December 1996

(21) De Volkskrant, 4 February 1998

(22) Janine Jaquet, Cornering Creativity, The Nation, March 17, 1997

(23) Anthony Seeger, Ethnomusicologists, archives, professional organizations, and the shifting ethics of intellectual property, in Music, Media, Multiculture: Musikaliska akademien, Stockholm 1998. See as well: Malm, 1992: 32, 184,5, 235,6.

(24) Ibid.

(25) Emery Simon, The Integration of Intellectual Property and Trade Policy, Alai Conference, Geneva, 27-28 June 1994

(26) Follow-up to the Green Paper on Copyright and Related Rights in the Information Society, Commission of the European Communities 1996: 5

(27) Jeremy Rifkin, The Biotech Century. Human Life as Intellectual Property, in The Nation, April 13, 1998

(28) See: Gary Schwartz, 7 March 1998: Gary.D.Schwartz@let.ruu.nl

4. the common cultural good and the future of the arts

James Boyle claims that, for a set of complicated reasons, 'we are driven to confer rights in information on those who come closest to the image of the romantic author, those whose contributions to information production are most easily seen as original and transformative.' He argues that this image of the romantic author 'is a bad thing for reasons of both efficiency and justice; it leads us to have too many intellectual property rights, to confer them on the wrong people, and dramatically to undervalue the interests of both the sources of and the audiences for the information we commodify. If I am right,' he continues, 'this unconscious use of the author paradigm has wideranging negative effects, with costs in areas ranging from biodiversity and the production of new drugs to the shape of the international economy and the structure of the computer industry (1996: X, XI).'

In this part of this article on intellectual rights related to the arts the quite remarkable statements by James Boyle are the issues which should be dealt with indeed. Let's start with the romantic concept of the author, the genius who creates a completely original work out of nothing and which has lead us in a "culture of originals" (19). First we must mark that this notion of authorship is a relatively young concept which came up with individualism in the western culture; in many other cultures it was and still is an unknown concept. James Boyle: 'As authors ceased to think of themselves as either craftsmen, gentlemen, or amanuenses for the Divine spirit, a recognisably different, more romantic vision of authorship began to emerge. . . . in this vision the author was not the journeyman who learned a craft and then hoped to be well paid for it. The romantic author was defined not by the mastery of a prior set of rules, but instead by the transformation of genre, the revision of form. Originality became the watchword of artistry and the warrant for property rights. . . . It is the originality of the author, the novelty which he or she adds to the raw materials provided by culture and the common pool, which "justifies" the property right . . . (1996: 54,5).'

One may wonder, however, whether this originality should not be seen in a broader perspective. On the idea that a genius creates a work out of nothing but his or her creativity, Krister Malm comments: 'This is of course not the case (1998: 24).' Here we are confronted with a contradiction. We are aware that someone creates a work of art, which we may appreciate very much, and which may look new to us now, from our contemporary perspective. However, in our present culture we are inclined to forget that the author or performer has used many sources - language, images, tonality, rhythms, colours, movements, meanings, humour, and so on - which belong to our common domain, the intellectual commons.

There is no poem without former poems. This makes it understandable that there exists not really a justification to claim such an absolute right, more or less a monopoly, on an expression as we allow authors in our present societies. Dutch painter Rob Scholte claims that 'copyright does not exists in postmodernism, on the contrary there exists the right to reproduce all. All is from everybody. This does not mean that all hereby has turned gratuitous. That would be an error of reasoning. People still make something for the first time, the authenticity continues to exist, and certain images keep their power of expression. As a postmodernist, however, I fight the idea of originality, of intellectual property, of copyright. Copyright is the notion of god that's what it's all about nowadays. I am in favour of the free right to portray all.' (20)

There is always a cultural debt, mostly a considerable debt; this should be valued. 'How should we understand "value" in the information society?', James Boyle wonders. 'Whose contributions will our system recognize and reward, whose will it ignore, or genuinely fail to see? . . . How does one break the grip of a rethoric of entitlement that systematically obscures and undervalues the contributions of one part of the population and magnifies those of another part of the population? (1996: 177).'

This has far reaching consequences, James Boyle argues. 'An authorfocused regime that makes the contributions of sources "invisible" is unlikely to reward those contributions . . . Sources may become a "commons" whose exploitation is justified or obscured by an author theory . . .' Partly the problem is the denial of creations of the past which have contributed to the artistic creations and performances in our present time. But the problem reaches also to the future. 'In developed nations too, the blindness of an authorcentered regime to the importance of the public domain can also lead to overly expansive intellectual property rights that deny future creators - novelists, scientists, programmers - the raw material they need to make new products. The tendency to undervalue the public domain is a worldwide phenomenon (1996: 130).'

Interesting is the contradiction James Boyle signals: 'if one truly worships Great Artists or Inventors, one is under an obligation to concede that the current system can make their lives a lot more difficult. The tendency of the current system to undervalue the importance of the public domain can deprive the truly creative among us of the raw material necessary to create their next transformative artifacts (1996: 165).'

This is exactly what might hinder the television screening of a work by the Belgian artist Johan Grimonprez, which has been shown already on the Documenta 1997. The title of his tape is Dial History, and that is what it really is. He crisscrosses through history and completely different aspects of society; 80% of the film consists of archive materials. As a work of art the use of those materials was not really important for rightholders, for the time being. For television, however, it is impossible without asking permission and paying lots of money. (21)

The strict system of copyrights raises a problem for new creations. James Boyle warns that intellectual property rights may become 'so expensive that they make it much harder for future independent creators actually to create (1996: XIII).' It is even worse, Ronald Bettig notifies. 'With few exceptions, copyright is based on an owner's ability to have exclusive control over the use of his or her product. This exclusive control is what protects the exchange value of the copyrighted work in the intellectual property marketplace (1996: 151).' Bringing intellectual properties - monopolistic rights - in a free trade context - GATT/WTO - is turning the world upside down (Amin, 1997: 29).

The reason why this all could happen is that an appropriation has taken place. Cultural value became property value, as Michel Foucault notes, summarized by Celia Lury. 'In the secularised ritual of Romanticism, the uniqueness of the cultural work itself was more and more displaced by the empirical uniqueness of the creator or his (and once again the use of the masculine pronoun is not accidental here) creative achievements. . . . it was through the authorfunction that cultural value became a thing, a product and a possession caught in a circuit of property values. What was at stake in this circuit was the limitation of reproduction; it was through the constitution of cultural works as intellectual property, and the allocation of limited rights in reproduction, that the potential instability inherent in reproduction made possible by modern technologies of culture was contained (1993: 23).'

In a way this may be understandable, without forgetting that the author concept has romantic traits, but at the present moment we are entering a completely new stage, according to Ronald Bettig. There is underway an expansionary logic of capital which infiltrates the vast ranges of human labor and activity, including intellectual and artistic creativity. 'Thus when it comes to the domains of information and culture, the logic of capital drives an unending appropriation of whatever tangible forms of intellectual and artistic creativity people may come up with, as long as this creativity can be embodied in a tangible form, claimed as intellectual property, and brought to the marketplace (1996: 34).'

The examples are manifold. In 1997 a Zürich based company, called Techno Tanz Veranstaltungsverwertung Zürich GbR, claimed that she has the authors right on techno dance. She urged a Berlin disco that copyrights should be paid. In the Netherlands PTT Telecom got the copyright on the specific colour green which some telephone companies happened to use. Also in Holland ABN/Amro Bank makes publicity with saying that they are The Bank. They got the exclusive right on the combination of the words The and Bank. Just normal forms of movement of the human body, words, colours are ripped off from the public domain and become the exclusive property of private interests. However, if there should be any payment, let them pay the public domain because they are using elements of the common cultural heritage!

The extension of rights concerns also the new digital communication tools, roads, environments, and infrastructures, as if it is selfevident. No shadow of doubt was amidst the G7 Conference held in Brussels on 25 and 26 February 1995 which 'confirmed the need for high standards of legal and technical protection for the creative content which will be disseminated via these infrastructures (Commission of the European Communities, 1995: 13).' This was endorsed by the Commission of the European Communities which stated in its 1995 Green Paper on Copyright and Related Rights: 'Those seeking to operate in the new environment must not find themselves hemmed in by legal constraints arising from a fragmented market (Ibid.: 29).'

Information, culture become commodities which may be exploited. In this philosophy the concentration of knowledge in the hands of a few is nothing absurd. Moreover, this is exactly what western states make possible, or even promote, by legislation and the application of copyright laws, including the hunt on piracy and unauthorized use. T. Koopmans, a former judge at the European Court, reminds the idyllic scenes depicted in the handbooks from the hard working and gifted artist who sees his efforts rewarded with exclusive exploitation rights. 'Those rights have turned into "business" (1983: 454).'

In this business the stakes are high, Janine Jaquet reports in The Nation. 'The trouble is, no one really knows which technologies will be worth having in the Information Age: Maybe it will be cable, maybe satellite TV, maybe the Internet, maybe none of these. Those companies that invested in the wrong "hardware" will be the losers. But those that invested in what will be delivered by the new technology - the winning sort of "content" or "software" - will emerge with a valuable commodity.

"Content," says Derek Baine, an analysist at Paul Kagan Associates, "holds its value." If content is king, synergy is still the power behind the throne, the rationale for media conglomerates' snatching up as much copyrighted material as they can. Today's mergers aren't just about grabbing more of the market share by buying yet another record label or movie studio or book imprint. They're also about acquiring the rights to music, movies and books. It's an investment in intellectual capital, i.e. creative expression, the twentyfirst century's most valuable commodity.' (22)

Viacom makes money on its "content". The German Leo Kirch owns at least 15.000 films and 55.000 hours serials, shows, concerts, operas, documentaries, and so on (Renner 1994: 159,160). One of the United States' largest exports is entertainment "software" films, television, recordings, and computer software. Ideas and their expressions are big, big business, and even U.S. foreign policy is influenced by considerations of intellectual property, according to Anthony Seeger. 'One result of these changes is that knowledge of all kinds is increasingly coming to be dealt with in market terms. Many forms of knowledge and wisdom have become "intellectual property." . . . Copyrights on music and dance increasingly determine who gets wealthy and who does not in the performing arts.' (23)

Without being nostalgic, he is being right to show that there is a remarkable difference. 'If, at one time, members of communities performed for one another in a face-to-face way, today, in most parts of the world, these performances are mediated by, and to a very large extent shaped by, legal considerations. What an audience today hears, and what it may not hear, is partially determined by copyright and money. For example, some radio stations may favor recordings by longdead composers over those by living ones for whose music they would be obliged to pay royalties; some festivals or clubs may insist that performers not play songs "owned" by one or another collection company; and some educational software developers may decide to use only music whose copyright has expired.' (24) And who owns the catalogues of music, images, texts, and performances will put pressure on all different channels and other outlets that his "products" will be used.

One of the consequences of this private appropriation of knowledge and works of art may be that much information, once purchased, is then removed from the public view - or more likely never permitted to be seen - precisely because it is privately owned (Webster, 1995: 93). The unhampered use of cultural creations does not seem to be in the interest of intellectual right owners of those forms of communication. They decide what will be on the market. All what may distract attention from what they are pushing at a certain moment will be withheld. A market "overcrowded" with an enormous diversity of artistic creations is considered not to be favourable for profit making. Intellectual rights make it possible to steer the availability - and the non-availability - of artistic creations on the market. More research should be done how and in how far this works, and what kind of contradictions are rising.

Copyrights being big business, the United States started to look at multilateral solutions for trade disputes on intellectual property protection, in any case what they consider as "trade" disputes. Herman Cohen Jehoram suggests that the WIPO framework would have been the most obvious context. 'However, this has been dominated by the developing countries. Thus it became GATT.' (1993: 67) In this context TRIPs, the Agreement on Trade-Related Intellectual Properties, has been prepared. Samir Amin wonders about TRIPs whether it may bring the developing countries 'back to the mercantilistic monopoly practices of 300 years ago? Even the language used to discuss the topic is not neutral. We no longer speak of knowledge as the common property of humanity, but rather of "piracy" . . . (1997: 29).'

Third World countries will not be the benefitors of the global setup of intellectual rights, it may bring problems also to small and medium sized arts initiatives in the western world, according to Ronald Bettig. 'For such companies, copyright does little to increase their output or guarantee them income (reward) as theory would hold. Strict copyright laws, effective means of enforcement, and more efficient marketing systems may increase both investor confidence in intellectual property markets and incentive to invest therein. But with the prevailing high barriers to market entry, copyright laws and related mechanisms do nothing to enhance independent producers' access to distribution networks or the public's access to a diversity of informational and cultural products. On the contrary, to the extent that copyright permits the accumulation of filmed entertainment rights by a few companies, it enhances market concentration and inhibits access to and use of informational and cultural goods (1996: 103).'

After all, who owns the rights likes to see his "property" exhibited, performed, registered and distributed as much as possible. This leads unavoidably to an oligopolistic domination of the cultural market, by which variety of artistic expressions and diversity of cultural communication will be pushed away. Obviously, one may contradict that oligopolistic owners will produce and distribute varieties of artistic expressions, otherwise they never could explore all the segmented markets the world over. However, they select; they decide which variety will be offered, and which one not; and which cultural ambiances will be created, and which ones never may come into existence. Real variety can exist only, when the majority of artistic cultural expressions will come forth from a variety of independent initiatives, institutes, and individuals.

For all national states TRIPs has enormous consequences. This was the estimation of Chakravarthi Raghavan already in 1990, before the negotations on this treaty came to an end. He got right, not only in the technical fields he describes but also in the cultural domains. 'The entire TRIPs negotiations are intended to internationalise what so far has been in the domestic domain, namely establishment of the norms and criteria for industrial (intellectual) property protection, broaden the scope of protection, extend the lifetime of protection (and thus monopoly rights of the TNC holding the patent), reduce or eliminate the capacity of the Nation-State to regulate or attack such monopolies, block technical development, and enhance the enforcement of rights of TNCs, nationally and internationally (1990: 96).'

Obviously, with the huge flows of information crossing the world by the digital information networks, control will be less and less possible. But the interests are high and the cultural industries do all they can to strengthen the copyright regimes. Celia Lury sums up: 'Temporary solution to these problems of copyright under these new conditions of cultural reproduction include: the spread of compulsory licensing schemes, of unified collection agencies sharing earnings in a pool, of governing tribunals, of special taxes on hardware, and the production of immediate information, such as news and financial information, before copying can infringe on the rights of its owners. At the same time, commercial organisations are pressing for further revisions to the traditional terms of ownership of rights in intellectual property in ways which will contain the free flow of ideas (1993: 166,7).'

One of the principal arguments to defend such a system of extensive intellectual property rights is the supposed innovation it will bring to us. Emery Simon said it clearly at the Alai Conference in Geneva, June 1994: 'So we have come a long way indeed. On balance, I believe this integrated system will provide a boost to both creative and inventive individuals.' (25) The European Commission expressed the same belief in the 1996 Followup to the Green Paper on Copyright and Related Rights in the Information Society: 'In line with the "Bangemann report" on "Europe and the Information Society", the Commission's action plan identified intellectual property protection as a key issue given the critical role creative content and innovation will play for the development of the Information Society.'(26) At the American side as well the incentive argument is familiar: creators and inventors should get incentives, otherwise we will not see anymore innovations and inventions (Boyle, 1996: 44).

However, it is not sure whether this innovation argument will wash, James Boyle remarks. 'To say that copyright promotes the production and circulation of ideas is to state a conclusion and not an argument. At the very least we might wonder if, in our particular copyright regime, the gains outweigh the losses (1996: 18,9).' Ronald Bettig explains why some doubt is justified. 'The underlying assumption here is that human beings require economic reward to be intellectually or artistic creative. The philosophy of intellectual property reifies economic rationalism as a natural human trait. Yet from our historical analysis we see that throughout most of human history there existed no concept of intellectual property rights. Nevertheless, humans still produced technological and cultural artifacts (1996: 25).' Therefore he thinks that it 'is questionable whether individuals pursue careers in artistic and intellectual activities on the basis of economic motivations when unemployment in these sectors runs so high. It is more plausible to assume that economic incentive appeals to the capitalists who invest in these activities and who would not invest if the potential for a profitable return on investment did not exist (1996: 171).'

Chakravarthi Raghavan argues that patents, trademarks and other intellectual (industrial) property rights are not even natural human rights. 'When European countries began creating patent rights, at the dawn of the industrial revolution, there were conflicts whether the "monopoly" to exploit the invention granted to the inventor is natural right or an exception to the natural right of citizens to the invention. . . . Patents and other intellectual or industrial property are thus statutory rights - benefits created by law by the State. Even to call them "rights" is a misnomer. They are really "privileges" granted by the State by statute - a form of government subsidy not unlike tax credits, export incentives etc (1990: 115,6).' Originally industrial development came because countries copied from each other, and now the western world says to the developing world you may not copy.

Will artistic creations and inventions, necessary for public life, be underproduced if intellectual property rights would not exist? Based on past experience and from what we know from other cultures we may believe that human beings always will continue to create and invent. What we may know for sure is that the selection of what will get the chance to be created or will be used and distributed will be different in a system where intellectual property rights may not exist or may be less rigid.

Isn't hubris of the capitalist owners of intellectual property rights that they think that their selection capacity is the best for all humankind? That does not sound democratic. It may be even worse, James Boyle puts forward. 'There are strong reasons to believe that the system of incentives set up under the current authorcentered vision of intellectual property will actually impede innovation and scientific progress, diminish the availability of our cultural heritage, inhibit artistic innovation, and restrict public debate and free speech (1996: 124-8).'

The western world and the poorer countries might be better off with inventions, which are rooted more in the needs of local people and are based on century old experiences. Patents on human genes and other aspects of human life are even immoral, but nevertheless booming business and protected by intellectual property regimes. As Jeremy Rifkin sums up: 'Multinational corporations are already scouting continents, hoping to locate microbes, plants, animals and humans with rare genetic traits that might have future market potential. After locating the desired traits, biotech companies are modifying them and seeking patent protection for their new "inventions." (27)

For some people the field of the arts may not be such a serious matter as the patenting of human life, because the arts are considered just as entertainment or as something which plays a role only in the fringe of individual and social life. This is a misunderstanding.
Artistic expressions in the fields of music, words, images, body movements are essential to the development of our sensitivity, our experiences of pleasure and sadness, what we feel and think about existential questions, whether we can bear human life or not. Artistic creation, the spread of the arts and cultural life - the individual and common experience of the arts - should thus develop in freedom, related to the huzzzle and buzzle of a given society. This is not possible anymore when a limited number of rightholders control what will be made available, under what conditions, and which artistic values may not be used at all. Such controlled regimes may hinder artistic developments instead of promoting artistic creation.

Artists make a mistake when they think they should make themselves dependent from the present rigid intellectual property rights system for their living, which does not offer them economically a fair deal, but hinders also the blossoming of the arts and cultural life. As James Boyle says on the authorcentered regime: 'It does not even serve the goals it is supposed to. An authorcentered-regime can actually slow down scientific progress, diminish the opportunities for creativity, and curtail the availability of new products (1996: 119).' Why this is so? Copyright and author rights 'can be used to deny biographers the ability to quote from or to paraphrase; to silence the parody; to control the packaging, context, and presentation of information (1996: 18,9).'

One may contradict this assertion by referring to the fair use exception in copyright regulations and authors right systems. The purpose of "fair use" law was to make sure, that future creators have available to them an adequate supply of raw materials for making works of art, and that society as a whole may benefit from what has been created. Therefore James Boyle concludes: 'From this perspective, too many "incentives" could convert the public domain into a fallow landscape of private plots (1996: 38).'

Precisely this concept of public domain is a residual one, according to John Frow: 'rather than being itself a set of specific rights, the public domain is that space, that possibility of access, which is left over after all other rights have been defined and distributed. It has had a shadowy legal presence through commonlaw principles such as fair use, through administrative measures such as freedom-of-information regulations or through statutory protection of free speech, but its lack of positive doctrinal elaboration leaves it vulnerable to erosion. It is a concept which is in many ways in crisis (1996: 102,3).'

There is reason for alarm indeed, according to Gary Schwartz, who reports that at one American campus after another, university lawyers are issuing directives about the legal status of the slides used in history classes, discouraging and perhaps prohibiting slide librarians from allowing certain slides to be made or used. They do this in order to prevent that the university will be sued. 'The test they apply is that of copyright. The lawyers want the librarians to be able to show proof, before releasing a slide for use, that no provisions of copyright law are being violated. In the case of a slide made from a reproduction in the New York Times, for example, of Andy Warhol's silkscreen portrait of Queen Beatrix, they would ideally like to see signed and sealed indemnifications covering the rights of the Warhol estate, the museum that owns the particular impression illustrated, the printer who made it, the photographer who photographed it, the Times and the Dutch royal family before allowing the librarians to make the image available. Needless to say, even the most obedient and conscientious librarians are unable to produce such documents, so that the daily reality of arthistory education, with thousands of slides in constant use, has become a cause for potential criminal charges against librarians and teachers.'

Amazement all over the place. 'These legal directives are late in coming. For a hundred years, art historians have been making photographic slides from any and all sources, of any objects that they wish to show to their classes. Until recently, no one dreamed of objecting to this. It seems as natural as the right of a teacher of literature or history to read aloud a passage from a book. To my mind it indeed is.' But Gary Schwartz is not amused that he must observe that this has changed. 'As publishers and museums and the entertainment industry invest heavily in easily reproducible content for the Internet, they are seeking stronger copyright protection for what is known as their intellectual property. The rethoric they employ in lobbying for their cause goes far. In the January 26th, 1998 issue of an American congressional magazine, the copyright lobby placed a fullpage ad showing a schoolgirl writing on a blackboard the big word STEAL, under a headline that reads: "Teaching your kids to steal?" The crime of which the kids are apparently guilty is copying a web page containing the "intellectual property of creative Americans."'

There is indeed an enormous pressure, according to Gary Schwartz, which is 'already making itself felt in the quality and nature of arthistory teaching. In some universities, where the slide librarian and campus lawyer are giving to erring on the side of caution, a work such as Warhol's Queen Beatrix would not projected in the classroom at all. Neither would an image of the Sistine ceiling after the last cleaning, to which a Japanese television company owns the right. There are no clear limits demarking the permissible from the prohibited in this field. The operative borderline now is the individual's sense of the absurd.' (28)

It becomes clear that concepts like common good, the intellectual and creative commons, public domain and public sphere are worldwide in the defense, or worse they become wiped off from the living memory. The privatisation of knowledge and creations as supported by TRIPs is, according to Vandana Shiva, 'a mechanism for the privatisation of the intellectual commons, and a deintellectualisation of civil society, so that the mind becomes a corporate monopoly.' She continues to say: 'Profits and capital accumulation are recognised as the only ends to which creativity is put. The social good is no longer recognised (Shiva, 1995: 10,1; Shiva, 1997).'

Shalini Venturelli directs the attention on the human rights consequences of the new international intellectual property laws. They will 'turn the information superhighway into a toll road with the structure of knowledge defined exclusively by economic criteria and proprietary power. This radical privatization of the public domain is unparalleled in history, in effect reversing the direction of modernity from the gradual expansion of information participation among social groups over time, to gradual concentration. Not only will public access rights and fair use rights be cut back, individuals will be denied the right to use information for associational purposes in order to organize and participate in society at large.' Gone will be 'information diversity and pluralism (Venturelli, 1997: 69; Hamelink, 1994: 284,5).' James Boyle stresses the need to be aware 'that many of the "human rights" and even more of the "international development" issues of the twenty-first century will be intellectual property issues (1996: 171).'

This makes it important to know more about philosophies which exist in non-western cultures and societies on knowledge as a common good versus the private appropriation. Hamid Mowlana claims, for instance, that throughout 'Islamic history, especially in the early centuries, information was not a commodity but a moral and ethical imperative.' And therefore, the crucial question 'for the Islamic societies is whether the emerging global information communication community is a moral and ethical community or just another stage in the unfolding pictures of the transformation in which the West is the center and the Islamic world the periphery (1993: 396).'

This question brings us to the old issue of collective rights. In Our Creative Diversity, the Report of the World Commission on Culture and Development, published in 1996, the very notion has been mentioned, not for the first time in the discussions on intellectual property rights, 'that traditional cultural groups possess intellectual property rights as groups. This leads to the radical idea that there can be an intermediary sphere of intellectual property rights between individual rights and the (national or international) public domain.' This raises the difficulty what is to be protected. 'The simple notion provided by an imagined primeval cultural source is obviously inadequate here: the Navajo rug, for instance, contains influences which can be traced, though Mexico and Spain, to North Africa.'

The Commission thinks that it is more promising to suggest 'that the word "folklore" should be applied to living creative traditions shaped by powerful ties to the past. It is also been pointed out', according to the Commission, 'that "intellectual property" is perhaps not the right juridical concept to be used at all. A case can be made for a new concept based on ideas inherent in traditional social rules. This might be more constructive than trying to make the forms of protection fit within a framework which was never designed for them and where the existing users and developers of copyright notions resists strenuously any such development (Pérez de Cuéllar, 1996: 196).'

Krister Malm describes that in 1996, the same year as Our Creative Diversity had been published, the question of international copyright protection of folklore again was put on the agenda by a number of Third World governments, this time in the context of the preparations for the World Trade Organization meeting that took place in Geneva in January 1997. 'The move to get the issue onto the agenda of the WTO meeting failed,' he reports. 'Again the failure was due to resistance from powerful industrialized countries and the culture industries to any introduction of "collective" or "cultural property" rights into the present system of intellectual and industrial property rights.' By the support of many countries the decision had been made that a meeting organized jointly by Unesco and WIPO in Phuket, Thailand in April 1997 should take place.

There was a great consensus among the participants, namely from the third world countries, that an international legal instrument ought to be worked out and how this in principle should be effected. This did not make the American and British delegates content at all, one could predict because in their countries the biggest international entertainment industries may be found. Krister Malm reports that tension rose 'when the U.S. delegate said that since most of the folklore that was commercially exploited was U.S. folklore and third world countries would have to pay a lot of money to the U.S. if an international convention should come about. The Indian lawyer Mr. Purim answered that that was already the case with existing conventions and by the way all U.S. folklore except the Amerindian one was imported to the U.S. from Europe, Africa and other countries. Thus the money should go to the original owners of that folklore.' In April 1998 Krister Malm noticed that nothing thus far has come out of the Phuket meeting and his expectations that collective rights will be taken as a serious issue by the western countries in the next future are not very high (1998: 26-29).