Developing countries and the international copyright regime : the neglected issue of cultural survival
University of British Columbia
Master of Laws - LLM
My thesis is concerned with the impact of the new international copyright regime established by the TRIPs Agreement on culture in developing countries. It argues that the TRIPs Agreement, to an unprecedented degree, imposes a rigid view of what constitutes culture on members of the WTO. In particular, the Agreement imposes Western, industrialized concepts, principles, and standards of intellectual property protection on developing countries. Since intellectual property rules are subject to the general mechanisms for dispute settlement and the enforcement of rulings at the WTO, the vision of culture embodied in the TRIPs Agreement is potentially coercive. In view of these developments, moral rights have become an area of growing importance for cultural policy. Moral rights have traditionally been closely linked to the protection of culture, due to their fundamental emphasis on the "non-economic" interests of authors and artists. The de facto exclusion of moral rights from the TRIPs system also accords them a new importance in relation to culture, as a potential area of relative independence for WTO members in the development of cultural policy. This thesis examines the basic question of whether developing countries can make use of moral rights protections in their copyright laws to improve the situation of culture under the TRIPs regime. In analyzing this question, my thesis considers in detail the treatment of moral rights in a representative developing country, India. It argues that India's historical experiences and cultural characteristics, as well as its historic leadership in copyright matters among developing countries, make it a highly relevant example for the majority of the developing world. My thesis argues that moral rights can make a substantial contribution to the state of culture in developing countries, and that moral rights doctrine should be developed as an important part of their cultural policies. This conclusion is based on three findings. First, moral rights doctrine shares some fundamental points of compatibility with traditional approaches to culture in many developing countries. Secondly, leading developing countries have already shown a basic commitment to moral rights doctrine in their copyright laws, and in the judicial development of moral rights protections. Finally, moral rights allow developing countries a degree of independence from the requirements of the new international intellectual property regime in formulating their cultural policies.
Law, Peter A. Allard School of