Culture

The cultural diversity mise-en-scène is surrounded by considerable confusion. A definition of culture is difficult to ascertain.⁵

The most widely accepted definition⁶ describes it as “the set of distinctive spiritual, material, intellectual, and emotional features of society or a social group. In addition to art and literature, it encompasses lifestyles, basic human rights, value systems, traditions, and beliefs.”⁷ A social identity emerges when all these factors are combined. As such, culture is also a dynamic entity—one that continually evolves with changes in membership and socialization.⁸ The inherent nature of change imbued in notions of culture is precisely what makes regulation in this area so difficult.

Cultural Diversity

Cultural diversity proves to be an even more elusive concept, because every culture and interest group has its own unique definition. Constructive ambiguity in this area is at its apex. We must briefly delve into the definitional depths to structure meaning around the concept.

France, original proponent of the exception culturelle (cultural exception) to the traditional rules of free trade, interprets diversity as differences between national cultures (especially with regard to languages). The polar opposite view is espoused by the United States, in which diversity refers to the free flow of ideas and expressions—a distinctly nation-neutral (and audiovisual sector liberalizing) approach. Both approaches have intrinsic problems.⁹

UNESCO (United Nations Educational, Scientific, and Cultural Organization) has struggled to reach consensus among its members on this issue and defines cultural diversity as “the manifold ways in which the cultures of groups and societies find expression.”¹⁰

This approach creates its own set of problems. Chief among these is its emphasis on the various different means of expressions (a commoditized approach) rather than the differences between cultures (an anthropological/sociological approach).¹¹ In this vein, cultural diversity is seen as a limited resource—even comparable to limited biological resources. The phenomenon of economic globalization has, at the same time, connected all cultures and revealed the differences that separate them.¹² As technology¹³ continues to flatten the world and bring new opportunities and challenges to the far corners of the globe, fears have surfaced concerning societal and cultural issues.¹⁴ Corporations that traditionally took a “command and control” approach to their operations now must take a “connect and collaborate” approach to remain competitive.¹⁵ In the ensuing collaboration, however, there is the danger, absent definitive protections, that unique cultural values will be consumed by homogenization or misappropriation without proper recognition. In part, the promise of promoting and protecting cultural diversity is the channeling of new technological connectivity to promote the dynamic cultural gestation process through collaboration. Other promises include benefits to development; more peaceful interactions among disparate cultures; and improved safeguards to the fluidity, dynamism, and expression of culture.¹⁶ The approach has been criticized because it logically follows that if cultural diversity is a limited resource to be protected, diversity is transformed into a debate around the quantification of cultural products and services.¹⁷

In this article, I approach the concept of cultural diversity within the context of the regulatory framework for musical goods and services. Thus, I acknowledge the dynamic nature of culture and focus on the current international regulatory environment and on an essential vector of cultural identity: cultural commodities. Note that law itself is not static. It is as dynamic as the cultures in which it functions. A dynamic institutional approach to international law is clearly a preferable modus in the trade and culture constellation.¹⁸

The preservation of cultural diversity is the protection of existing cultures¹⁹ and the simultaneous promotion of evolving cultural forms and expressions. It is the promotion of equality, inclusiveness, and dialogue among the world's cultures. It is the recognition that all cultures and citizens should be able to reap the benefits of the rich heritage of humanity and, therefore, be able to participate in a more balanced form of globalization.²⁰ The definite structures necessarily imposed by legal strategies have been critiqued as too narrow, exclusionary, and unable to adequately deal with the fluid nature of culture.²¹ Only recently have legal scholars begun discussing creative new solutions to adapt the law to these concerns.²² Surely, only through interdisciplinary collaboration can the recognition of cultural differences beyond commoditized expressions be manifested in the regulatory sphere.

The link between culture and human rights establishes the international legal pretext on which the concept of cultural diversity is based. The United Nations Universal Declaration on Human Rights (Universal Declaration)²³

states in relevant part, “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts, and to share in scientific advancement and its benefits. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”²⁴ With regard to our present focus on cultural content, these provisions seem to establish a strong rationale both for the assertion of societal rights for diverse cultural content and of intellectual property protections for cultural content producers. These provisions are mirrored by the language used by the International Covenant on Economic, Social and Cultural Rights (CESCR), which observes “the right of everyone: (a) To take part in cultural life; (b) To enjoy the benefits of scientific progress and its applications; and (c) To benefit from the protection of the moral and material interests resulting from any scientific, literary, or artistic production of which he is the author.”²⁵ The philosophical raison d'être for these segments of human rights law is indicated in the CESCR Fact Sheet. It states in relevant part:

An analytical reading of Article 27, however, reveals that, although some would claim that both copyright and cultural diversity are human rights, the Universal Declaration never mentions the word copyright. We must observe that the Universal Declaration is not a treaty of public international law, but the CESCR includes the text of Article 27 verbatim in its own Article 15(1)(c). The CESCR is a binding international legal instrument.²⁷

Article 15(1)(c) provides that “everyone has the right to the protection of the moral and material interests … from any … production of which he is the author.”²⁸ Thus, it has been noted that this provision affords rights to the creator or author but not a copyright that effectively protects publishers.²⁹ The linkage to be observed, therefore, is that creators or authors have the human right to the protection of their interests deriving from their creations.³⁰

Culture can imply two disparate conceptions. The first conception is centered in art and literature. The second conception is centered in lifestyles, basic human rights, value systems, traditions, and beliefs.³¹

The first refers to cultural expression. The second refers to sociological and anthropological issues. Although both conceptions have been instrumental elements of the debate on preserving and promoting cultural diversity, the copyright context (and, thus, this article) focuses exclusively on the former: the expression of cultural identity. Freedom of expression is protected by the International Covenant on Civil and Political Rights. Article 19 of the covenant affords the right to hold opinions without interference and to express them. The term expression, in this instrument, includes the freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in the form of art, or through any other media.³²

Additional Definitional Concerns

The definition of cultural products has also been subject to considerable debate (especially as the digital environment blurs definitional boundaries) largely because specific linguistic subtleties can drastically alter legal meaning. Industry leaders interpret their goods and services as mere entertainment. This language enables cultural goods and services to be subject to the international trade liberalization rules of the World Trade Organization (WTO). Others have interpreted cultural goods and services as societal achievements. This language would justify special treatment for cultural goods and services.³³

The absence of a consensual definition of cultural goods and services has enabled the current status quo of stagnant international legal protections of cultural diversity.

Recently, much has been written about the shift of jargon used within UNESCO and in the greater policy debate—the expansion of the term cultural property to cultural heritage. This shift is a testament to the progress made within the policy spectrum in terms of acknowledging that cultural policies must not only focus on tangible property but also represent the cultural expressions and interests of those intangible traditions such as music, folklore, knowledge, and dances.³⁴

In this study, keep in mind that although the recognition of the value of both tangible and intangible cultural content has successfully commenced, a regulatory framework for its protection has been, thus far, unsuccessful.³⁵

The various initiatives to support cultural diversity have, at present, all been soft law—nonbinding and programmatic statements that subordinate themselves to the WTO agreements and other binding (dispute settlement/sanction based) international commitments. The past and current absence of a normative interface between trade and culture³⁶

has created a unique constellation whereby the widely proclaimed goal of cultural diversity is effectively inutile vis-à-vis the multilateral trading system of the WTO.³⁷

The Ideological Debate: Cultural Diversity versus Copyright

A wave of scholarly sentiment observes that the combination of the international legal framework and the market power of a limited number of leaders in the content industries create a cultural vacuum in which the dispersion of diverse cultural content is endangered. Homogeneity within the cultural messages of the industry not only threatens the quality of content (by solely representing the common denominator), but also causes market censorship through the prolific use of comprehensive marketing strategies (that serve to marginalize and even supplant competitive alternatives).³⁸

Christophe Germann argues, in the context of the film industry, that the audiovisual oligopoly drives competitors out of business, thereby depriving consumers of diverse cinematic offerings.³⁹ When the creative and entrepreneurial decision makers of media products are clustered into a homogenous cultural, linguistic, ideological, racial, and business environment, products directly reflecting that environment are produced. The worldwide dominance of the cultural industries, as well as their increasingly broad copyright law–based powers over content production, distribution, and use awakens considerable concern among advocates of cultural diversity.⁴⁰ These powers are important to the industry leaders because they directly affect what, where and how their content is produced and consumed (with financial, societal and market, consequences). Fiona Macmillian dissects the issue by differentiating between the instrumental versus fundamental relationship of copyright to culture.⁴¹ Because copyright is used as an instrument for promoting trade in cultural output, the relationship is clearly instrumental. Macmillan argues that a fundamental relationship (one in which copyright rules stimulated and protected cultural output on the basis that it has a noneconomic value in itself as an expression of human creativity) would be preferable. Through the exponentiality of power (i.e., power begets even more power), cultural filtering, increased homogenization, the gradual loss of the commons, and the increasing commoditization of culture, the need for counterbalancing rights or a complete reevaluation of the copyright system has become a necessity.⁴²

Other voices penetrate this debate, however, with claims that the current copyright system is essential to the promotion of cultural diversity. Bonnie Richardson, the vice president for Trade and Federal Affairs with the Motion Picture Association of America (MPAA), makes several compelling claims. First, she refutes the claim that American hegemony and cultural diversity are dichotomies.⁴³

As a country of immigrants, she posits, America is one of the most culturally diverse countries in the world. She argues that its cultural products reflect that diversity. Second, the copyright instrument and cultural diversity are not dichotomies. She points to the research of economists Keith Maskus, Edwin Mansfield, and Carlos Primo Braga, and claims that enforceable copyright regimes increase overall welfare.⁴⁴ Cultural diversity is promoted, Richardson claims, through an efficient and effective international trade regime for all goods and services. Culture should not be “carved out” of a system that promotes trade, because “trade promotes cultural diversity.”⁴⁵ This perspective views sectoral exceptions to GATT as bad trade policy, because it paves the way for more and more exceptions and to a weakening of the negotiated trade liberalization scheme. These arguments also reveal the crucial question of whether the current copyright regime is effective and enforceable; a topic we explore in Section 3.

The diverse opinions on which path is correct are essentially ideological (and pecuniary interest driven), because the arts “mould our mental framework, our emotional texture, our language, our tonal and visual landscape, our understanding of past and present, our feelings about other people, our sensibility.”⁴⁶

As French film director Marin Karmitz has written, “Behind the industrial aspect, there is also an ideological one. Sound and pictures have always been used for propaganda, and the real battle at the moment is over who is going to be allowed to control the world's images, and so sell a certain lifestyle, a certain culture, certain products, and certain ideas.”⁴⁷ Thus, the arts have the power to shape culture, and the debate surrounding which (and whose) arts are promoted is founded in different ideological positions.

The Ideological Underpinnings of Copyright

Although there is the ideological debate surrounding the nature of copyrightable content, there is also an international ideological debate surrounding the instrument of copyright itself. There are two ideological foundations of copyright rules; one has been traditionally embraced by the United States, and the other largely by continental Europe. The conceptual differences are subtle but have resulted in considerable differences in application. The debate “has centred on whether copyright is a natural right of property in authors, or whether copyright is a statutory monopoly designed to balance the competing interests of authors and end users with the ultimate objective of advancing the public good.”⁴⁸

The copyright systems initially derived from the common law tradition view of copyright, as an instrument of commerce that helps proliferate intellectual property works on the market. The civil law tradition countries (like continental Europe) champion authors' rights and emphasize the need for authors to have continuing control over their works (le droit d'auteur).⁴⁹ The global copyright regime, as observed in following sections, has minimized⁵⁰ this ideological schism, caused by the impact of the General Agreement on Trade and Tariffs (GATT), and its Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement.

The Evolving Concept of Musical Property: “In the Beginning Was the Word”⁵¹

John 1:1, the Holy Bible.

(not the Music)

Cultural content of the musical form has existed before recorded history. The concept, however, that such content is property in a proprietary sense, is relatively modern. Current copyright law protects a composer's proprietary claims over a wide variety of uses of music, including: written representations in notation form, as part of a dramatic or audiovisual work, and when embodied in a recording.⁵²

This section adopts a historical approach. Examining several historical periods can help identify how, when, and why music evolved into property. I will briefly review the concept of music in ancient Greece and Rome, medieval Europe, and during the Renaissance and compare those concepts with contemporary understandings of music as intellectual property. Observing the stimuli for conceptual change historically creates a better position to analyze whether conceptual revisions are currently warranted.

In ancient Greece and Rome, the concept of proprietary claims to music did not yet exist. Although little notated Greek music has survived (caused by the papyrus medium),⁵³

scholars have written enough for us to ascertain the philosophies and practices of music in ancient Greece. Musical notation on various primitive surfaces was developed after the fourth century bc, but music consisted of intangible and communal expressions.⁵⁴ The Greeks believed music was different than spoken language—one was to be written down (Greek) and the other was not (music). Music was considered an art form bestowed to man by the gods through the intercession of the Muses—specifically, Euterpe, the musical muse.⁵⁵ As part of the quadrivium of mathematical liberal arts, music was a force of nature to be studied but incapable of being owned by a mortal.⁵⁶ In our modern world, we use music's ability to stimulate emotional responses and sell it as a commodity. The ancient Greeks viewed music as a reflection of balance and harmony, as well as a power that could be disruptive to the social order if not controlled. Both Plato and Aristotle believed that compulsory music education was necessary to enable free citizens to control their own emotions. Plato felt that music was so powerful a force that all aspects of music should be under strict government control.⁵⁷ Aristotle agreed that musical education was vital to society but disagreed with Plato's idea of state-paid and chosen musicians (because that would prevent musicians from being free men). The idea that a composer would have proprietary rights to a melody was a concept foreign to the Greeks, because their perception of music was linked to a divine system—one that ordered their world.⁵⁸ Although authors (poets, playwrights, philosophers, etc.) were attributed their works, the melodies they often wrote to accompany their texts remained unattributed.⁵⁹ When political power shifted from Greece to Rome, the Romans looked to the Greeks for ideological inspiration.⁶⁰ Despite the impressive innovations of Roman law, however, there is no evidence that Roman law supported proprietary claims of musical expression and composition, even though some have posited that their tenets of contract and intangible property are the philosophical roots of those contemporary laws.⁶¹

In medieval Europe⁶²

several elements fused to form the foundations of property rights in music. First, the notation of music in physical form was again attempted—now on less-ephemeral media. This made music a physical embodiment of an intellectual endeavor (instead of a momentary, otherworldly phenomenon). Second, the profession of music composition emerged, and the demand for musical compositions grew. Third, urbanization and increased trade made music more of a commodity.⁶³ Because the Catholic Church was the most influential political and social institution in medieval European life, music was dominated by liturgy and the chant style⁶⁴ of composition. The Church directly regulated chants.⁶⁵ Secular music, however, was controlled by the feudal system. Only fragments of the secular tradition were embodied in written form. During that period, the concept of property did not attach to the discipline of either music performance or composition. Although, as the job of musical production evolved from slave labor to the labor of the Church, the evolution of music from the property of nature to the property of individuals took root. When the Church developed a system of written notation to preserve the divinely inspired chants, the necessity for musical literacy and technical proficiency soon followed. The tool of notation sparked new innovation and forms of expression. Secular music began the tradition of love songs (sung by troubadours). Music guilds⁶⁶ were then established to make the first proprietary claims to music.⁶⁷ The legal protection of guilds greatly evolved the notion of musical performance but had no effect on written music itself, because guilds were granted official monopolies on public performance by towns.⁶⁸ Further, membership in a guild became a professional requisite for a musician in the era.⁶⁹ The fourteenth century produced even higher levels of achievement in the musical arts. Books of compositions were printed, notation had become ubiquitous, and the commoditization of music had started, but that commodity was not consistently attributed to the composer/artist.⁷⁰ Clearly, however, the foundations of property rights were laid during the Middle Ages largely because of innovation-based commoditization.

During the Renaissance, the philosophy of humanism,⁷¹

the further development of composition, and the rise in the number of famous composers caused music to emerge as a form of property. This had legal ramifications. For the first time, proprietary claims were made by publishers of music they sold.⁷² The increasing status of the composer culminated in Flemish composer Orlando Lassus' attempt to control the printing of his music.⁷³ Control at this time was different from today's copyright protections. In the Renaissance control meant the publisher's right to publish and vend copies of musical scores. In 1440 Johann Gutenberg's revolutionary invention, the printing press, helped spur this conceptual evolution. The conceptual evolution sparked a legal revolution, but one that took 200 years to occur. When it did, the commoditization of music was complete, and property rights in compositions were first recognized.⁷⁴ The Renaissance laws regulating printed books also applied to publications of music notation. The main musical customers during the period were wealthy aristocrats and the Church (but with advances in printing techniques, publications were increasingly available to the public at large). The law granted limited monopolies in expressive and technological innovation and included controls on the content itself through licensing and guild rules of publishing.⁷⁵ Legal protection over musical works was granted to encourage increased expressive productivity, as well as increased technological innovation in the printing of music. Exclusive rights were granted to publish and sell copies of music for limited times in limited geographical areas.

Thus, in ancient Greece and Rome, music was viewed as separate from words, and treated very differently. Music was given no property rights, and composers were not acknowledged as the source of inspiration. In the Middle Ages, notation was redeveloped; musical composition was considered a viable activity; and music guilds were formed to give exclusive performance rights legal force. The Renaissance brought the innovation of efficient publishing to musical composition. This caused the evolution of the concept of property rights to include published music. The rights granted to publishers helped them compete against other publishers and other geographical market entrants. The common logical theme that runs through the history is that material conditions determining the commoditization of music directly impacted the concept of private property in each era. The legal concept of property was malleable to changes in the material conditions existing at the particular time. This brief historical journey has hardly been without purpose. We should observe a pattern: conceptual changes in the law brought about by the conversion of technological and philosophical stimuli. In the current battle over the future of music in the digital networked environment, it is wise to refer to the battles of the past⁷⁶

and recognize that changes in material conditions and circumstances often can make existing legislation and market strategies obsolete.⁷⁷

A Brief Legislative Review of Copyright

The first official copyright legislation began in England, in 1709, with the passing of the Statute of Anne. At that time copyright had nothing to do with music. A product of lobbying by book publishers,⁷⁸

the act granted exclusive rights⁷⁹ to authors, included protections for consumers of printed works, and limited the duration of exclusive rights to 28 years⁸⁰—after which all works would enter the free public domain.⁸¹ Instead of lobbying for direct publisher rights, which would have been defeated (caused by fears of monopolies), the publishers supported author rights (which could then be assigned to a publisher by the author). This tactic worked and has continued to work as each century has seen increasing copyright protections enacted.⁸² In the infancy of the United States, Thomas Jefferson expressed his opinions of intellectual property protections by observing that “ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature… .”⁸³ This view has been evanesced, in recent generations, by successively stricter legislation. The eventual result was the Copyright Act of 1976, which is the basis of current U.S. copyright law. It provides protection for “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”⁸⁴ The rights granted to these works include the rights to reproduce, prepare derivative works, and distribute copies.⁸⁵ These rights are limited by exceptions, such as reproduction by libraries and, most importantly, the fair use exception.⁸⁶ This piece of U.S. legislation has birthed a copyright regime that affects musical property rights worldwide, and one that has significantly enlarged the scope of those rights.

Content producers have fettled as the problem of piracy has, once again, been magnified by technological progress.⁸⁷

This has resulted in a tripartite effort to curb the problem. First, they have used legislative brokering to secure international tightening of intellectual property rights. Second, they have filed lawsuits en masse to cement their rights and deter offenders. Third, they have enacted digital rights management (DRM) systems to technologically circumvent intellectual property offences.⁸⁸ Vociferous lobbying efforts by the cultural content industry have resulted in many legal changes—both in the United States and internationally. In 1998 the U.S. Congress passed the Digital Millennium Copyright Act (DMCA),⁸⁹ which harmonized U.S. law with the World Intellectual Property Organization (WIPO) Internet Treaties.⁹⁰ These treaties state that the right of reproduction applies in the digital environment, and copyright owners are entitled to “control whether and how their creations are made available online.”⁹¹ They require member states to enact protective measures and provide national treatment to works originating from other member nations. Further international instruments extend copyright protections worldwide. The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention)⁹² is the international treaty that provides for the recognition of copyrights across national borders. Shifting from the WIPO framework and into the WTO was part of a package deal nations entered into willingly.⁹³ Within the ambit of the WTO, the TRIPS Agreement⁹⁴ incorporates the requirements of WIPO, the Paris Convention for the Protection of Industrial Property, and the Berne Convention,⁹⁵ and is the “most comprehensive multilateral agreement on intellectual property” to date.⁹⁶ The TRIPS Agreement requires WTO members to set up minimum standards for protection, clarifies enforcement procedures, and provides a dispute settlement between member nations. It also requires compliance with the Berne Convention, and clarifies and adds certain points (mostly related to copyright protection for computer programs and databases). The TRIPS enforcement mechanism⁹⁷ requirements include a system that “permits effective action against infringement, contains expeditious remedies which constitute a deterrent, is fair and equitable, is not unnecessarily complicated or costly, and does not entail any unreasonable time limits or unwarranted delays.”⁹⁸ Although the TRIPS Agreement is one⁹⁹ of the most important treaties of intellectual property protection, it has several shortcomings that will likely undermine so-called “comprehensive copyright infringement protection.”¹⁰⁰

A Critical Analysis of Applicable Trade Agreements

TRIPS was enacted as a flexible means by which each member's intellectual property rules could be enforced.¹⁰¹

The agreement allows countries to tie demands for stronger copyright protection to reciprocal concessions on exported materials, because trade sanctions have been historically effective measures for controlling policy implementation. The TRIPS Agreement sets out several regulations for protecting performers, phonogram producers, and broadcasters. Article 14 of the Agreement specifies that:

Thus, it is noteworthy in this study that free online music sharing is generally prohibited under the TRIPS agreement.

The two problems with TRIPS as an effective means of international copyright regulation relate mostly to its theory of national sovereignty and its enforcement mechanism (however, other weaknesses have certainly been observed).

Article 1 of the TRIPS Agreement sets out the “Nature and Scope of Obligations” under the Agreement as follows:

Article 3 of the TRIPS Agreement specifies how member nations must treat other member nations who allegedly violate the hosting country's specific copyright laws:¹⁰⁴

Article 4 of TRIPS specifies that any “advantage, favor, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members.”¹⁰⁶

The purpose of this most-favored-nation treatment principle is to prevent discrimination against other foreign-rights holders. If a country wishes, of course it could choose to enact more stringent standards than those set out in copyright or neighboring rights treaties. Most member states do not have copyright law regimes that show preference for foreign nationals; international agreements are the natural source for equalizing the treatment of all copyright infringers within a specific nation's borders.¹⁰⁷ Pragmatically, the concept of borders becomes muddled in the digital commons, and experts are concerned about the practicality and possible success of attempting to implement such borders.¹⁰⁸

TRIPS also propounds the territoriality principle.¹⁰⁹

This principle declares that a state has no competence to enact regulations governing activities occurring outside its borders.¹¹⁰ At the same time, however, TRIPS requires every country to provide the same protection under its domestic laws to both domestic and foreign defendants. Thus, the territoriality principle in TRIPS provides no concrete agreement on substantive rights.¹¹¹ Some agreement between members may be found in the substantive provisions of the international copyright treaties; however, most of the fundamental police controls and enforcement measures are left to individual members to decide. Some scholars have now begun to attack the territoriality concept at the theoretical level.¹¹² Most countries are simply unwilling to relinquish their sovereignty over essential intellectual property decisions for a variety of economic reasons. Because of these implications, some experts claim that treaty approaches that center on territorial controls will not be able to adequately manage the expanding reach of the Internet, because of the possibility for rampant violations. Statistics show that in the United States alone more than 20% of the population currently engages in unauthorized copying of copyrighted material.¹¹³ Such a statistic is illustrative of the enforcement problems faced by copyright regimes. Caused by the lack of a guarantee that countries will have rules in place to adequately protect against Internet music sharing, developed countries like the United States are now also demanding extra-territorial protection for their works.¹¹⁴ Of course, worldwide substantive protections are rendered meaningless without effective enforcement measures. Because the United States dominates the global music industry, there is a reticence by some members to focus their energies on such a centralized problem with limited consequences for their own citizens (other than the censorship concerns).

Part III of TRIPS governs the enforcement of substantive rights. The framers of the Agreement tried to balance the need for unrestricted trade in goods and services with effective means for protecting against intellectual property violations.¹¹⁵

The balancing that was undertaken out of necessity arguably makes it ineffectual and ambiguous. Paragraph 2 of Article 41 states, “Procedures concerning the enforcement of intellectual property rights shall be fair and equitable. They shall not be unnecessarily complicated or costly, or entail unreasonable time-limits or unwarranted delays.”¹¹⁶ Paragraph 5 states:

In the copyright context, if countries are not actively policing the copyright infringement occurring within their boundaries, the basic legal provisions will have no force.¹¹⁸

The absence of international enthusiasm and for stronger copyright enforcement has caused the United States and some European countries to initiate trade sanctions.¹¹⁹ To encourage other countries to abide by U.S. copyright standards, the United States has tried imposing trade sanctions against countries that violate them. Other tactics have included imposing political pressure on foreign leaders and offering free education about U.S. policies and standards.¹²⁰ Section 301¹²¹ directs the president to, “take all … appropriate and feasible action” to enforce United States rights in trade agreements. The “2005 Special 301 Report” details the inadequacy and ineffectiveness of intellectual property protection in ninety nations around the world.¹²² The report emphasizes the growing issue of counterfeiting and piracy, with a specific focus on Internet copyright infringement. It further contends that the reason for unacceptably high levels of piracy and counterfeiting of U.S. intellectual property is that certain countries have not fulfilled the necessary implementation of TRIPS enforcement provisions. Nations that threaten U.S. intellectual property rights are placed into priority categories. For example, in 2004 Ukraine was identified as the highest priority because of its repeated failure to take effective action against significant levels of optical media piracy and its lack of adequate intellectual property laws in general. Many other countries, including Brazil, Bulgaria, China, India, Indonesia, Lebanon, Mexico, Pakistan, Paraguay, the Philippines, Russia, Thailand, Venezuela, and Vietnam were also identified for their failure to comply with U.S. intellectual property demands. All the countries listed on the report are described as having inefficient or imprecise copyright enforcement measures. All the countries that refuse to actively police the copyright infringement occurring within their borders, as rational actors, are presumably doing so for concrete reasons. Countries such as China have continued to accept widespread copyright infringement within their borders (de facto infringement is still infringement even in the presence of de jure compliance).¹²³ Trade sanctions by the United States have worked in several cases. However, until the global economy is more equally proportioned, it is unlikely that the majority of countries (including WTO member states) will be vigilant at curtailing copyright infringement.

Under the General Agreement on Trade in Services (GATS), the WTO instrument that governs trade in cultural services, prolonged debate, and negotiations have yielded inconsequential results. On one hand, the United States (supported by media interests who dominate the United States' international exports) has pushed for free-trade principles to apply to cultural goods and services. This stance is consistent with both WTO goals of trade liberalization and freedom of expression goals. On the other hand, a majority of members have not wanted to take on legally binding GATS obligations because that would undermine their domestic cultural policies. Thus, most members have viewed cultural goods and services as special types of commodities, because “cultural patrimony can be seen as a crucial component of the identity and self-understanding of a nation.”¹²⁴

This view, however, has rendered GATS powerless to liberalize the cultural services sector.

Imbalances in the global economy, certain weaknesses in the TRIPS Agreement,¹²⁵

and the reticence of WTO Members to take on legally binding obligations under GATS (for cross-border exchange of cultural goods and services) make the current international trade laws ineffective at either promoting free trade in cultural goods and services or promoting the freedom of nations to protect certain goods and services for cultural diversity aims.¹²⁶ Beyond the pragmatic problems with the intellectual property framework within the WTO, there lies substantial and legitimate uncertainty whether the new philosophical paradigm is consistent with both the new digital environment and the needs of sustainable cultural development as well as equity considerations.¹²⁷

Review of the Important Judicial Decisions in the United States

Lawsuits have also defined the legal copyright constellation. The most important ones, in the context of the music industry caused by the increased uncertainty of the digital environment, have come from the United States.¹²⁸

A brief review will ascertain the current balance of industry and consumer interests rendered by those decisions.

Constitutional law questions were raised in Eldred v. Ashcroft.¹²⁹

In that case, the Supreme Court decided that the Sonny Bono Copyright Term Extension Act of 1998 (CTEA) did not nullify the U.S. Constitution's limited times clause.¹³⁰ This decision affirmed Congress' power to continually extend copyright terms.

There have been two seminal fair-use cases. The first (and most heavily cited) case was Sony Corp. v. Universal City Studios (Betamax).¹³¹

In that case, the question was whether purveyors of consumer technologies that enable infringement can be held liable for users' illegal acts. The Supreme Court found that, because Sony's VCR machine was capable of “substantial noninfringing uses,” Sony could not be held liable for an individual user's copyright violations.¹³² This case caused the court to determine that time shifting copyrighted content for later personal, noncommercial use constituted fair use under the Copyright Act.¹³³ The next case of note was RIAA v. Diamond Multimedia Systems, in which the question in the Betamax case was ported to a portable consumer device that allowed the playback of Mp3 audio files.¹³⁴ The court reasoned, “The [device] merely makes copies in order to render portable, or space-shift those files that already reside on a user's hard drive.”¹³⁵ Thus, just as in Betamax, the device was considered legal, despite its ability to enable users of the device to commit piracy.

Distributors of peer-to-peer (P2P) file sharing software have been subject to the sternest scrutiny by U.S. courts. In A & M v. Napster, it was held that contributory and vicarious copyright infringement was present in file sharing software where the company operated a centralized database, had knowledge of infringing activity, and provided a current site and central index of files in the system.¹³⁶

Here, the defense of substantial noninfringing uses did not convince the court. Following this decision, the controversy continued with P2P software that did not employ a centralized indexed database of files on the peer network. Of most recent note is the case of MGM v. Grokster. The Grokster decision initially reasoned that, because the defendants' software had a decentralized design, the defendants lacked sufficient control over users to warrant vicarious liability for users' copyright infringement.¹³⁷ Also, the court held that the Grokster software program was capable of “substantial noninfringing uses” (in a nod of recognition to the ruling in Betamax). However, the U.S. Supreme Court heard the case, because of the entertainment industry's petition for certiorari. The Supreme Court, in an insolite but unanimous decision, reversed the summary judgment that had been in favor of Grokster (and StreamCast), holding that, “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”¹³⁸ Grokster, by its own admission and conduct, knowingly encouraged and assisted the infringement of MGM's copyrights. Both service providers actively distributed the software and encouraged users to download the copyrighted files, promoting themselves as the new Napster alternatives. Income was generated through selling advertising space and streaming the materials to users employing the programs. This case has redrawn the line between supporting creative pursuits through copyright protection and promoting innovation in new communication technologies by limiting the incidence of liability for copyright infringement.¹³⁹ As part of the recent line of P2P file–sharing lawsuits, this decision represents the Supreme Court's growing enmity towards illegal downloading and streaming of copyrighted materials.

The DMCA has birthed its own series of important cases; deriving mainly from its controversial anti-circumvention provisions. In Universal Studies v. Reimerdes, the issue was whether the DMCA's anticircumvention provisions are constitutional.¹⁴⁰

The case centered on the cracking of the content scramble system (CSS) used to prevent DVD piracy. The crack (termed DeCSS) was intended as a technical means of playing DVDs on Linux computers, which did not have a CSS-licensed software player. Because the crack software had substantial fair uses (i.e., playing legally purchased DVDs on Linux computers), the defendants claimed, the First Amendment protects the publication of the code. The U.S. District Court and the Second Circuit held that, even though the code is protected under the First Amendment, the DMCA's provisions do not violate the First Amendment.¹⁴¹ Another case that dealt with noncircumvention was RealNetworks v. Streambox.¹⁴² In that case RealNetworks' proprietary encryption and control technologies were defeated by Streambox's Ripper and VCR programs, which allowed Real content to be used with non-Real software, conversion into non-Real formats, and copying of Real content. The injunction RealNetworks obtained led to a settlement, and Streambox ceased its distribution of the programs. Thus, the DMCA affords different rules to digital media than to analog media. For example, although people can copy a song broadcast on the radio, they are prohibited from recording digitally streamed media. Other cases have followed and have generally upheld the strict anticircumvention measures imposed by the DMCA.¹⁴³

With regard to electronic publishing rights, there have been two important cases. New York Times v. Tasini dealt with whether periodical publishers have the right to license and republish articles in electronic databases.¹⁴⁴

The Supreme Court ruled that publishers did not have such a right, because electronic rights must expressly be included in the publisher's contract with the author.¹⁴⁵ In the same vein, the court in Random House v. Rosetta Books held that the publisher's exclusive right to publish and sell a book in a physical medium does not automatically afford the right to publish the book in an electronic medium (i.e., as an e-book).¹⁴⁶ This case was settled. However, the message of these cases is clear: Publishers will demand blanket assignment of rights when negotiating contracts with artists, writers, and freelancers to avoid litigation over electronic publishing rights This practice will certainly include the music industry.

These cases illustrate the current legal landscape surrounding the digital copyright system.¹⁴⁷

The balance of both the current copyright regime and the case law interpreting the regime unambiguously favors the rights of the content industries over the rights of individual consumers and the public at large.¹⁴⁸

A Chimerical Debate

At the philosophical heart of the notion that cultural diversity is to be embraced worldwide is the view that cultural goods are not mere consumer goods; they express a vision of the world and the most complete identity of individuals and peoples.¹⁴⁹

The compatibility of the current copyright regime with these aims has been a topic of debate between scholars and policymakers alike. There are generally two views espoused in the literature on the topic—each at polar ends of the debate. On one side of the spectrum, is the so-called Germann Formula¹⁵⁰ an accurate portrayal of the effects of intellectual property rules on the cultural diversity constellation? On the other side of the interest spectrum, are MPAA member Bonnie Richardson's polar views that intellectual property rules actually promote cultural diversity¹⁵¹ any less valid? In the digital networked environment, some liken the sharing of digital cultural content to sharing a favorite CD or DVD with a friend or making a mix tape of favorite songs to share. This is partially true; however, when digital files are on a P2P network, the meaning of friends is expanded to thousands of anonymous Internet users. Others posit digital cultural content sharing is akin to walking into a store and stealing a CD or DVD.¹⁵² This is also partially true; however, when one steals from a store, there is one less physical item present—and the thief retains the physical object.¹⁵³ In the digital networked environment, when someone downloads a file from a P2P network, a copy is made with the consequence of zero media removal. Thus the actual situation is both how the content industry describes it and as consumers and P2P companies describe it. It is a chimera.¹⁵⁴ The challenge is determining the best way to govern it.

Example #1. Darkness Amidst Satellite Radio

Satellite radio is the most recent innovation to shake the music world. Consumers have benefited from CD-quality digital broadcasts as well as largely commercial-free programming (because it is a subscription service). Subscribers have frequently time-shifted their programming so that they could make use of the service that they have paid for at times that were convenient. The RIAA has recently objected.¹⁵⁵

They believe it is a copyright violation. The RIAA threatened a lawsuit caused by their fears that the capability to record digital satellite radio will diminish the revenues of paid download music services.¹⁵⁶ Thus, consumer electronics manufacturers are dissuaded from making devices with record buttons. An RIAA spokesman said, “We hope that we can resolve this on a business to business basis…”¹⁵⁷ As innovation and new consumer services are introduced in the music market, copyright is consistently used by existing stakeholders to protect their markets and limit the consumer's choices and experience.

Example #2. The Copyright Fire Spreads to Campgrounds

Permission is increasingly required for the most mundane and innocent of endeavors. Campers have, for generations, been able to tell stories and sing tunes like “Row, Row, Row Your Boat” around a campfire without asking for permission. American Society of Composers, Authors and Publishers (ASCAP), the performance rights body that licenses copyrighted works for nondramatic public performances believes it is entitled to determine the terms for such performances. ASCAP reasoned that because hotels, restaurants, and resorts must pay for the right to perform recorded music, summer camps should be required to pay for licenses, too.¹⁵⁸

Under copyright law a public performance occurs “where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”¹⁵⁹ Thus ASCAP was technically correct. ASCAP initially demanded that the American Camping Association purchase a license fee of $1,200 per season per camp.¹⁶⁰

Example #3. The Rebirth of the Library of Alexandria?

California Internet search engine firm Google, Inc., embarked on an ambitious project to scan and catalog books from the Harvard, Stanford, and University of Michigan libraries for the goal of easier public diffusion of knowledge.¹⁶¹

Their ambitious goal was to make their Internet database of scanned library books into the next Library of Alexandria:¹⁶² a place where a comprehensive collection of hard to access books could be readily accessed by the public at large. The University of Michigan issued a statement about the project. It reads:

In August 2005, the project was abruptly canceled; Google stopped their efforts caused by fears of copyright infringement lawsuits by the publishing industry.¹⁶⁴

The creative effort was stilted by fear caused by the ever-increasing privatization of the commons.¹⁶⁵

These real examples show that whether consumers will be able to listen to their satellite radio broadcasts the way they want, campers can express themselves musically around campfires, and innovative companies can compile the next Library of Alexandria directly depends on whether the international copyright regime can succeed at not only protecting their investments but also protecting innovative expression and cultural diversity.

Preliminary Conclusions

The current copyright regime has enumerated benefits that should be retained, but it exhibits more banes than blessings in the context of promoting and sustaining cultural diversity in musical commodities

While discovering rural musicians may help small numbers of them become recognized internationally, musical diversity is destroyed when the world's cornucopia of music is mixed and edited by handful of media interests. Although it may be beneficial for the world to have access to American cultural goods, it is not beneficial, in cultural diversity terms, for the world to be awash in the culture of only one nation. Further, although a harmonization of national intellectual property laws into negotiated instruments-in-progress like TRIPS may eventually serve the public good, such a system is ineffective without strict international enforcement. The current legal regime of copyright (both regionally in the United States and as implemented internationally in negotiated agreements) is unable to provide a predicable, enforceable, harmonized, and balanced international market for cultural commodities amid the wide proliferation of digital and network technologies. The historical analysis we have explored has shown that, in new eras, new legal philosophies are born. Our case study (comprised of three out of an existent multiplicity of real examples) shows how the current copyright regime can hurt innovation, creativity, and diversity—the very fundamentals that it was ostensibly created to service.

Thus, I assert that the current copyright regime hurts cultural diversity through its observed impact on innovators, artists, consumers, and inextricable ties to oligopoly interests. Some prominent legal scholars have expressed the same sentiment. Rosemary Coombe noted, “Laws of intellectual property privilege mono-logic forms against dialogic practice and create significant power differentials between social actors engaged in hegemonic struggle.”¹⁷⁵

This way the copyright regime can serve to quash dialog and diversity of expression by leveling unequally balanced rules. Jessica Litman takes a more cautious approach when she writes, “What has happened is that copyright has become less about incentives or compensation than about control, and so it has been converted into a trade issue, which might be good for the balance of trade of the United States and to a lesser degree for some other Western countries, but it is at the expense of cultural democracy and diversity.”¹⁷⁶

Clearly we have entered a new era—the era of the digital music revolution. There are new material circumstances that simply were not present in former eras. Digital reproduction has rendered copies of music distortion free; the World Wide Web has connected music fans (and their collections); physical music media has been relegated to secondary importance in light of customizable playlists and digital music players with ever-doubling storage capacities; and affordable digital music studios have democratized music production. Just as past technological breakthroughs have spawned new regulatory policies,¹⁷⁷

the international regulatory schemes governing digital music must reflect this paradigm shift. Joost Smiers underscores this need, and writes, “The maintenance of cultural diversity … demands work … it is not self-evident that the freedom of artistic communication can flourish indefinitely.”¹⁷⁸

It is clear that not only do copyright rules need to adjust to balance both consumer and artist interests with the interests of the producers, but copyright also must broadly reform its communication policy¹⁷⁹

and reflect the needs of both digital and cultural ecosystems.

Current Work on the Protection and Preservation of Cultural Diversity

After two years of negotiations, UNESCO adopted the Convention on Cultural Diversity on the October, 20, 2005. Countries vacillated over whether the convention would be applied or interpreted in detrimental ways. The United States, for example, fretted about its affect on the progressive liberalization of the audiovisual sector. When the convention came down to a vote, all members, except for the United States and Israel, expressed their assent. This near unanimity can be interpreted several ways. First, it is reasonable to notice that international instruments that pass with such uniform assent rarely impose great responsibilities or binding commitments on the signatory members. Second, notice the ideological rift between the majority (152) of members who did not vote against the convention and the minority (2) who did. The opposition voiced several arguments. Paragraph 2 of Article 8 (measures to protect cultural expressions) states, “parties may take all appropriate measures to protect and preserve cultural expression in situations referred to in paragraph 1 in a manner consistent with the provisions of this Convention.” The United States feared that this might be misinterpreted and serve as a basis for impermissible new trade barriers that are related to cultural expressions. The argument continues by attacking the provisions as vague and contending that the scope of the convention is ambiguous. In Section III the Convention attempts to define concepts like cultural diversity, cultural activities, and the like. For example, cultural expressions are defined as “those expressions that result from the creativity of individuals, groups and societies, and that have cultural content.”¹⁸⁰

The drafting contains definitional vagaries, but it is unlikely that the convention could be used to the effect the United States posits. Paragraph 1 of Article 8 states that a party “may determine those special situations where cultural expressions on its territory are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding.” The institution of broad protectionism under the guise of cultural protection would clearly violate the nature and purpose of the treaty. Further, the savings clause of Article 20.2 attests that “nothing in this Convention shall be interpreted as modifying the rights and obligations of the Parties under any other treaties to which they are parties.” Any conflict between the convention and another treaty would be adjudicated by the WTO Dispute Settlement Body (because only the WTO has an effective dispute resolution mechanism). Therefore, the Unites States and Israel's fears that progress within the WTO at trade liberalization is now in jeopardy should be allayed. Opponents of the convention also have complained that the convention authorizes states to restrict their own citizen's access to information. The right enshrined in Article 19 of the Universal Declaration states that everyone has the right to freedom of opinion, freedom of expression, and freedom to “seek, receive, and impart information and ideas through any media… .” However, this right can be limited for the protection of, or respect for, the rights or reputation of others. The Convention on Cultural Diversity falls under this category, because it attempts to support the survival of cultural expressions. Further, the treaty only specifies positive measures for the promotion of cultural diversity, and specifically states that “no one may invoke the provisions of this convention in order to infringe human rights and fundamental freedoms enshrined in the Universal Declaration of Human Rights or guaranteed by international law.” Therefore, this argument against the convention also does not stand up to scrutiny.¹⁸¹ The argument that truly pierces this instrument calls into question its efficacy at preserving cultural diversity. Parties who ratify the convention need not assume any obligations under the agreement. Further, the convention does not specifically advance the rights of minority cultures. Because existing rights and obligations of states are not altered, it will arguably have little effect on international policy making. Even if the convention will come to little effect, perhaps this is the beginning of an ideological shift¹⁸² occurring because of the imbalances within the current international intellectual property regime.¹⁸³

Ameliorative Ideas and Expected Developments

The current challenge is to allow content to be diversely produced and accessed without undermining the investments made within the cultural industries.¹⁸⁴

I do not posit the current regime to be immitigable; however, given the predilection of the international copyright system to favor oligopolies at the expense of consumers, new market entrants, and niche offerings¹⁸⁵ and relative inability to curtail rampant international copyright infringement, scholars (and even the content industries themselves)¹⁸⁶ have proffered numerous alternative systems as potential companions¹⁸⁷ to our ever-evolving copyright scheme.¹⁸⁸ The two most important of these alternatives are DRMs¹⁸⁹ and virtual market remuneration systems (VMRS).¹⁹⁰

DRM systems, or self-enforcing digital controls on the use of content, have become a means by which the cultural industries can preserve control over their content and distribute digital content over the Internet at the same time. These systems promise zero infringement by the end users of the digital products. Presumably, these systems could ensure that, in the digital realm, copyrights are fully honored. However, there are potential pitfalls. First, the history of computer programming reveals that every code can be broken, and every digital lock hacked.¹⁹¹

Second, the limited access and use that DRMs potentially offer the public cause many legal debates surrounding the doctrine of fair use.¹⁹² Third, the use of proprietary technology in crafting DRMs has stirred up debate within the technology sector, because proprietary systems can effectively be used as a tool for market domination.¹⁹³

VMRS systems, or state-funded (virtual market) remuneration schemes, have also been proposed by scholars in the field. These schemes generally promise to strike a balance between industry and consumer interests for digital media products. By creating a virtual market for digital information goods, such a system would appease the industry by paying them from government coffers (some proposals have based the amount and choice of beneficiaries on consumer voting systems) and the consumers by decriminalizing access of copyrighted digital material. Here, there are also potential pitfalls. First, there is the problem of assessing who gets how much. This distributional factor is not a small question, and could undermine such a system. Second, the philosophical question arises as to whether the state should directly subsidize the arts in this way. Third, VMRS may result in government censorship. (If governments have direct financial control over artists, they may excessively control the arts.) Fourth, virtual market models would certainly disrupt existing economic structures for cultural production and distribution—thus impacting national economies. In the United States, for example, the copyright industries account for more than 5% of gross domestic product (GDP).¹⁹⁴

Further, VMRS has serious implications regarding privacy rights. Such a system would require a central database of the cultural and informational preferences of whole societies at large, which is problematic on both philosophical and pragmatic levels. These examples exhibit some alternatives to the course of implanting the traditional copyright paradigm into the digital world. Although they exhibit creative innovation and promise, they also reveal that there is much work to be done to engineer an enforceable and harmonized international intellectual property regime to tackle the digital networked environment.

The near future brings exciting technological possibilities for consumers in terms of experiencing cultural content—especially music. Among the inevitable innovations, one in particular has the potential to fundamentally change the music industry. This innovation is the distribution of digital recorded music via mobile telephone networks.¹⁹⁵

Such a conversion of technologies will serve to not only provide consumers with virtually unlimited jukeboxes in portable devices, but it will also redefine the music industry. As the primary mode of musical goods distribution changes from analog physical media products to digital network–stored (or streamed) media files, the rules of the game must adapt to the fundamental change in the game itself. An analysis of the challenges and practical solutions to such a seismic change in the market structure for musical goods is beyond the scope of this paper. However, such changes in modes of distribution serve as a spotlight into the uncertain future of music in a technologically charged global economy.