Bulletin n° 14 - décembre 2015

 


Culture and Intellectual Property

Noémie BULTEAU, Charlotte GUYARD (élèves avocats de l'HEDAC / ISIT)


“Cultural participation and the protection of authorship are both human rights principles designed to work in tandem. Striking an appropriate balance between the two goals is thus essential, even if challenging”[1]. That statement made by the Special Rapporteur on Cultural Rights highlights the willingness of the United Nations to resolve tensions occurring between intellectual property and culture. Indeed, these two rights are often regarded as contradictory or mutually exclusive, whereas they should be deemed as complementary, contributing each in its own way to the promotion of culture, knowledge, progress and human well-being.

Intellectual property refers to creations of the mind such as inventions, designs, literary and artistic works, symbols, names, images, and performances[2]. Intellectual property rights (IPRs) grant control over the commercial exploitation of works, and provide incentives for further creativity.

Property right stricto sensu encompasses four criteria. It is enforceable erga omnes, absolute, perpetual and exclusive. In this way, according to a strict conception, property rights prevent from all exploitation or use by anyone of a protected asset. As a result of this privative effect, intellectual property law is subject to criticisms and controversies as it brings a limit to the free movement of knowledge, essential for the individual and community development. In reality, intellectual property differs from real property as the protection of immaterial properties is time-limited and their use can be admitted without the author’s consent in some exceptional cases.

Intellectual property is a way of encouraging the expression of individuals and cultures, a means of economic and scientific development for countries as well as a diplomatic bargaining tool. If all creations were freely copied without payment and reward of the author, intellectual professions would never exist.

The United Nations Educational, Scientific and Cultural Organisation (UNESCO) has defined culture as “the whole complex of distinctive spiritual, material, intellectual and emotional features that characterize a society or social group. It includes not only the arts and letters, but also modes of life, the fundamental rights of the human being, value systems, traditions and beliefs”[3].

Culture may have an impact on creativity[4]. Intellectual property was introduced in order to encourage individuals to create and innovate. It also plays a major role in cultural creations. The French Conseil Constitutionnel has approved this aspect of intellectual property in a 2004 decision on the law concerning the protection of individuals with regard to the processing of personal data. The Council decided that the aim of that legislation was to fight against counterfeit practices and that consequently this law met the “objective of general interest attached to the protection of intellectual property and cultural creation”[5].

This article outlines the link between culture, creativity and intellectual property law.

Culture influences intellectual property law for it determines the legal thinking of countries. As a matter of fact, France, the USA and China have very different approaches on intellectual property and especially on literacy and artistic property. However, such differences in the way of thinking do not necessarily lead to different legal solutions and protections (I).

Furthermore, intellectual property is used to protect cultures and traditional knowledge – hence culture is an object of intellectual property. Indeed, intellectual property law can intervene as a protecting tool in order to prevent an appropriation for commercial purposes of another community’s cultural creations without permission (II).

Finally, at a time when information and communication take an important place in our society, a new culture is born: the digital culture. It appears to be the new challenge for lawyers and lawmakers as it may either endanger intellectual property rights or require rethinking intellectual property law so as to be adapted to digital creations(III).

Influence of cultures, philosophy and history on the approach of intellectual property law

The Special Rapporteur has devoted her 2015 report to the Human Rights Council to the issue of the impact of intellectual property regimes on the enjoyment of right to science and culture, as enshrined in article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)[6]. Such regimes are influenced by culture themselves and vary from one country to another.

There are two major conceptions of intellectual property rights. On the one hand, there is the personalist vision according to which the right shall belong to the creator ab initio. This is a natural right pre-existing to the formal acknowledgment made by law. France applies this jus naturalis conception. On the other hand, there’s the collectivist approach according to which the right belongs in the first place to the society, but the law formally grants a temporary monopoly to the sole creator in order to reward him for his work. The creator, as the usufructuary, enjoys a temporary permit whereas the community, as the bare owner, finds back all its monopolistic rights on the creation when those of the creator terminate. This vision can be found throughout the US legislation. Finally, China’s intellectual property legislation takes inspiration from both conceptions.

Traditionally, France has a personalist conception of literacy and artistic protection – as known as “author’s right” – in several respects.

Firstly, the expression itself illustrates such personalist vision. While the USA chooses copyright (thus insisting on the public’s right to copy if the conditions are satisfied), France calls it “author’s right” (thus putting the author at the core of the legislation).

Secondly, author’s right was born in France during the fourteenth century after the invention of printing which facilitated the distribution of books and consequently their infringement. As there was a monetary aspect underlying the implementation of that right, booksellers asked to be granted by the King printing privileges on the creators’ works. The Revolution abolished privileges and the age of Enlightenment that followed instilled a romanticism and humanism by placing the creator at the centre of “authors’ rights”. Intellectual property is no longer a favour granted to booksellers economically exploiting the work, but a property right exclusively recognized to the author.

Thirdly, the existence of this right is not subject to any formality, registration or filing, contrary to trademark law, which is subject to the first-to-file rule.

Fourthly, only a natural person may be granted author’s rights ab initio. A legal entity cannot be qualified as an author because it cannot physically create, paint or perform any art or work itself. This is a difference with the US copyright system, which admits a legal entity to be entitled and qualified as an author in the case of “works made for hire”[7].

Fifthly, in addition to economic rights, a perpetual moral right is recognized to the author in order to ensure respect for the integrity of his work, and for his name associated with it. Therefore, there is under French law a strong link between the author and his or her work.

Finally, author’s right is personalist in the sense that it provides extensive rights to the author, while exceptions to such right are allowed in a limited extent.

Author's right is restrictive in the sense that the intellectual property can only be used in respect of the strict conditions allowed by the author himself. Indeed, in principle the author enjoys a broad monopoly on his work. If he were to dispose of exploitation rights, the assignee could then only invoke the rights strictly and expressly conceded in writing by the author in the contract for the agreed period[8]. If the assignee uses a means of exploitation not provided by the contract (e.g., selling a film on the internet while only DVD media were conventionally planned) then he or she will be deemed as an infringer.

In contrast, exceptions to author’s rights are apprehended narrowly under a closed system of exceptions. There is an exhaustive and limitative list of exceptions to the author's permission requirement (e.g., exception for public information purposes, private copying exception, exception for educational purposes, etc.). Not only must this exception appear in the enumerative list set out by the Intellectual Property Code, but it must also comply with the “three-step test”. The three-step test is a legal standard instituted by the Berne Convention, the WIPO Treaty[9] and WTO’s TRIPS agreements[10]. It has been then included in the European Directive 2001/29 CE transposed by the French “DADVSI” law in 2006 (i.e. law on author’s rights and related rights in the information society). It is therefore a Community obligation applicable to all EU Member States[11], which must satisfy the three cumulative requirements. Firstly, limitations or exceptions to exclusive rights must be confined to ‘certain special cases’ clearly defined with a specific purpose. Secondly, the exception must not conflict with a normal exploitation of the copyright material. Thirdly, it must not unreasonably prejudice the legitimate interests of the right holder.

The USA has an opposite and economic approach of intellectual property. It is the subject of a uniform legislation applicable to all federal states in the USA. In principle, the Congress shall act only in the areas enumerated in the Constitution[12]. The federal state has been able to legislate in trademark law by invoking the interstate commerce clause provided for in article 1, section 8, clause 3 of the U.S. Constitution. Such clause enables the Congress to legislate either when the good or service is exchanged between states, or when the commerce occurs in one State but with a transnational or international scope. That is the case of trademarks which are signs helping for the identification of the origin of the goods or services.

The U.S. law has a utilitarian approach fundamentally opposed to the jus naturalis philosophy that is specific to French law. Indeed, in the field of patent law and copyright the article 1, section 8, clause 8 of the U.S. Constitution states that “Congress shall have power to promote the progress of science by securing for limited times to authors the exclusive right to their writings”. The U.S. Constitution is based on the British Statute of Queen Anne (1710), which is the first law in the world of copyright. The clause states that it is a law to encourage scientists to write useful books[13].

The American copyright system differs from the French personalist system in other respects. The USA has an economic vision of copyright. Indeed, the author is only granted a patrimonial right but no moral right. Moreover, the US copyright protection is subject to mandatory formalities: the author must deposit its work to both the Copyright Office and the Congress Library.

Furthermore, exceptions are ruled under an open system: the principle of “fair use” (section 107 of the U.S. Copyright Act). This concept means that the law allows someone to copy or use someone’s work without his or her consent and without paying royalties if such use complies with four conditions. The four factors considered by the judge are:

-          the purpose and character of the use (whether the copy is lucrative or not),

-          the nature of the copyrighted work (whether it is informative or imaginary),

-          the amount and substantiality of the portion taken, and

-          the effect of the use upon the potential market (whether there is competition, encroachment or substitution on the copyrighted work’s market).

This open-system provides the advantage to make copyright flexible and adaptable to unforeseen practices evolving in the field of new technologies. The French – and more generally the European – closed system would require amending the law each time an unforeseen use arises as exceptions are permitted only if they are listed in the European directives and the national Intellectual Property Code.

However, the US fair use system has a drawback too. It is almost impossible to predict whether a copy without permission and payment would be deemed as fair use. Indeed, fair use disputes can only be settled in federal court. In addition, “these four factors are only guidelines that courts are free to adapt to particular situations on a case-by-case basis”[14].

Thus, the judge preserves a major margin of appreciation when resolving the case in the light of the four factors.

Another legal system shows a different and intermediary approach of intellectual property: China. As one of the biggest counterfeiting market in the world, it seems interesting to analyse how individuals’ IPRs managed to make it through and gain acceptance in the communist territory. Indeed, history shows China’s recent awareness of the intellectual property benefits.

Chinese history and traditional values explain China's reluctance to apply the individualistic rules of the Western notion of intellectual property. Until the adoption of its intellectual property legislation thirty-six years ago, intellectual property in China was a state right, not an individual's right. Moreover, the Confucianism and Daoist philosophies also influenced the intellectual property back in the fifth century B-C. Indeed, they encouraged copying since disseminating the master's work was considered a “high tribute to the work rather than a form of theft”[15]. It can be observed that creations and innovations have long been seen as a contribution to the community development, a salutation of the emperor and the gods, a state's right.

China's attitude toward the notion of intellectual property changed when it got in contact with the Western world, especially at the beginning of the nineteenth century when author's rights were proclaimedin France[16]. Counting from the 1800s, China adopted patent treaties with the United States and became acquainted with that system which influenced its legislation. Yet, during the 1950s, Mao Zedong replaced those rules with the “Provisional Regulations on the Protection of Invention Rights and Patent Right” which meant the author was compensated but his invention could be copied without his consent. Furthermore, the Cultural Revolution put into a break the intellectual property with the persecution of intellectuals. Finally, in 1979, the Chinese government recognized the Intellectual Property Rights (IPRs), and later on, it adopted the Trademark Law of the People's Republic of China in 1982 and the Patent Law of the People's Republic of China in 1984.

Such moves from China to align with the Western standards show its willingness to contribute to the international relations. This can be confirmed with the fact that China became a member of the World Intellectual Property Organization in 1980 and the World Trade Organization in 2001[17]. Despite that intention of cooperation, China never managed to enforce those rules efficiently. It is often said that “the problem isn’t that China doesn’t have intellectual property laws: it’s that China doesn’t enforce them”[18]. As a matter of fact, according to the Organization for Economic Cooperation and Development 5-9% of today's world trade is the product of the parallel network. This inadequacy is due to cultural reasons but also economic benefits of counterfeiting that accounts for 10% to 20% of China's total GDP. However, as China develops itself, it also gets aware of the damages caused by intellectual property violations and puts efforts in taking action against it progressively.

Chinese IPRs are the result of a mix between those two western conceptions. As a communist regime, acting more in favour of the nation rather than the individual, China chose to protect artistic property under the copyright system. In contrast, trademark law is ruled under the European first-to-file rule that grants the trademark ownership to the party that files first.

These three legal regimes attest the influence culture and history may have on the approach of intellectual property. Despite such divergence on the modalities of protection, it turns out in practice that none of these regimes protects an author in a less favourable manner.

Besides, the minimum standards the Member States agreed upon in international treaties bear witness of their common goal to protect creations without consideration of their difference of culture.

Intellectual property and cultural heritage

Traditional cultures represent the creativity and have spiritual, historical, cultural and economic values for the traditional communities of the world. The UNESCO considered folklore forms as part of the universal heritage of humanity[19].

Folklore (or traditional and popular culture) has been defined by the United Nations Organisation as the “totality of tradition-based creations of a cultural community, expressed by a group or individuals and recognized as reflecting the expectations of a community in so far as they reflect its cultural and social identity; its standards and values are transmitted orally, by imitation or by other means. Its forms are, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts”[20].

There is nowadays a complex relationship between traditional cultures and intellectual property. Indeed, on the one hand, intellectual property may be invoked to protect cultural heritage. But on the other hand, when two countries exchange their cultural experiences and heritage, there are a lot of intellectual property issues between the artwork’s origin country and its host country.

Along with the fast-growing industrial culture, some Western wealthy companies have been appropriating for themselves the signs and artistic expressions of traditional cultures for profit marketing purposes. Such appropriation for commercial exploitation of the art, music and the traditional culture of some communities comes into conflict with the desire of protection of their intellectual property by the latter.

Many cases highlightedthe issue between folklore and intellectual property.

For instance, the case involving the Havaianas Brazilian brand of rubber flip-flop illustrates such issue. In fact, for the launch of its new collection, the brand decided to conclude a contract with an indigenous artist of the Yawalapiti tribe from Amazonia, in order to create a new collection of flip-flop taking up his tribal print[21]. However, the tribe authorities were offended by that commercial re-use. Although the artist was a member of the tribe, they considered that he was not entitled to sign the contract by himself with the Brazilian brand because the rights on the tribal print were collective to the community. The tribe authorities concluded that there was a violation of the visual heritage of the Yawalapitis and consequently referred to the intellectual property[22].

In this case, there are two appropriations that must be distinguished. There is a cultural appropriation of the author’s artistic sign made by the tribe and by the Havaianas brand. The tribe considers that the work is a cultural heritage and a sign of their identity. As a consequence, the tribe asserts that the appropriation and commercialisation of that sign by the Havaianas brand did not depend on the artist’s consent but on the whole community’s. Therefore, the tribe claims an intellectual property right on its traditional culture in order to fight against the misappropriation for commercial exploitation of their art by the Brazilian company.

Likewise, in 2003, Nike’s patterned Pro Tattoo Tech Tights sparked ire in the pacific community for its similarity to pe'a, the traditional male tattoo of Samoa[23].

Not only did the community find the re-use of the male print to be exploitative but also offensive as it was placed on women’s leggings. Considering the fact that the leggings were both a violation of the Pacific’ indigenous people and of the United Nation Declaration on the Rights of Indigenous Peoples, a petition was organized[24]. Eventually, Nike decided to withdraw the leggings from the market and apologized in a statement to anyone who viewed that collection as disrespectful of any culture. The brand affirmed that the collection was only inspired by the tattoo graphics and the objective was not to offend communities[25].

This is another example of the victory of the cultural heritage on commercial operations without permission thanks to the application of the intellectual property principles.

However, cultural heritage’s legal regime is controversial.

On the one hand, ethnic groups look for a protection of their traditional art and knowledge through intellectual property law. This claim of protection of the folklores against the abusive commercial exploitation can be considered as fair and legitimate. Indeed, folklore commercialisation may harm the traditional societies at different levels. First of all, the inappropriate re-use of the community’s cultural symbols may alter and undermine their original values, as it was the case when the Samoa male tattoo was printed on Nike’s women leggings. Secondly, such commercial exploitation may endanger the economic interests of the ethnic community, which suffers a revenue shortfall. Indeed, the community may either enjoy no economic benefits or gain very little compared to the huge profits made by the exploiters.

On the other hand, for some people cultural heritage is deemed as an integrant part of the public domain. The public domain, expression inspired from the Roman law, concerns all free royalties creations that are not protected by the intellectual property law. In other words, the public domain allows unrestricted use of un-owned creations without the author’s consent, as he is not granted any rights or protection of his work. Those who support such legal qualification of cultural heritage do so by raising their right to free access to information as guaranteed by international treaties and Universal conventions. Hence, human rights and intellectual property law appear opposite. In reality, they should be deemed complementary to ensure innovation. It is therefore necessary to strike a balance between each party’s interests (free access to information vs. protection of the traditional cultural expressions) by defining the scope of intellectual property law. Indeed, article 15 of ICESCR[26] simultaneously calls for the protection of the right to take part in cultural life, the right to enjoy the benefits of scientific progress and its applications, and the right to benefit from the protection of authorship.

The international community is involved in the elaboration of solutions in order to avoid the litigations as those encountered in the Nike and Havaianas cases. International intellectual property law is silent on traditional knowledge. That is the reason why there is flexibility and scope for states and regional organizations to establish sui generis protection systems[27]. For instance, South Africa already anticipated that issue by adopting a Traditional Knowledge Protection Bill, which protects traditional knowledge through the application of some intellectual property principles such as copyright, trademark or designs and models.

According to the WIPO, at the international level, text-based negotiations are underway in the WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore towards the creation of an international legal instrument, which would provide effective protection for traditional knowledge and cultural expression[28].

Despite this real desire to establish a link between the intellectual property and the protection of the cultural expression, there is another reality which is the free movement of the cultural experiences and works[29]. Such exchange of artistic works may also involve intellectual property issues, notably in case of a country’s refusal to return the work.  

Indeed, the works exposed at the Louvre museum or the MOMA had a history before their exhibition to the public. These memories constitute the historical and cultural heritage of the origin countries.

Year after year, people decided to give a certain importance to the collective heritage. They wanted to preserve and to protect their works and avoid deterioration of their art but also to promote their cultural heritage to the entire World.  

As a consequence, museums and the institutions responsible for the preservation of the cultural heritage only became users of the intellectual property rights. However, in some cases, they act like the owners of these rights violating consequently the one of the real owners.

As a matter of fact, art trade represents a real economic advantage for the origin countries but also for the museums of the host countries. However, there is today a real polemic between the origin countries and the museums of the host countries, which refuse to return their work considering that they are universal and part of our global cultural heritage.

This is illustrated by the recent polemic between France and China concerning the bronze sculptures that were stolen during the looting of the Chinese Old Summer Palace by the Anglo-French forces in 1860, or the polemic about the return of the mummies in Egypt. The question underlying these diplomatic disputes is whether these restitutions are legitimate[30].  

It is possible to consider in a certain way that the states are in their right when they claim the restitution of their history, their intellectual property. However, if we consider that the works are part of the global heritage, therefore it is not possible for the countries of origin to claim intellectual property rights on them, and consequently the host countries may decide to keep them.

Different arguments are opposed concerning the restitution of the works. On the one hand, the argument frequently used by the host countries to refuse the restitution is they are more able to restore or conserve the work than the countries of origin. This argument permits host countries to keep valuable intellectual property assets in order to be sure that the work is well conserved[31]. Another argument used in favour of the conservation of this work by the host countries is often a historical and colonial argument. The argumentation is the following: the works were discovered or offered during the history to the host countries, and consequently the owners cannot be the origin countries[32]. On the other hand, it could be counter-argued that origin countries may claim property rights on their natives’ artwork.

These conflicts are the perfect illustration of the difficulty concerning the principle of free movement of the cultural experiences and intellectual property.

Intellectual property and the digital culture

Information technologies created a new culture: the digital culture. There is no precise definition of digital culture. Within the framework of this article, we will see the digital culture through the lens of the dissemination of digital technologies. In this context, digital culture represents every form of production of cultural work through information and communication technologies. Information technology plays two roles: it is a mean of disseminating works and cultural assets, but also a support for the latter which can exist under different forms.

The issue is that information and communication technologies give users the feeling that they are authorized to use the elements they may find on the Internet. The web users are sure that since the assets are online, they may use them without the author’s permission. Indeed, in our society music, books, software, images and files can be digitalized. As a matter of fact the cultural products protected by the intellectual property law may be represented on the Internet and anonymously copied, stocked and diffused directly across the world. According to a report, almost 14% of the investigations concerning the counterfeiting and piracy concern the transaction realized on the Internet[33]. Internet facilitates the violation of the copyrights. For instance, recent cases such as the Sony Entertainment hack or the illegal upload and download of the leaked episodes of Game of Thrones’ series proves that information technologies may have an influence on intellectual properties. Indeed, these cyber-security infringements allow hackers to release personal data and movies protected by the intellectual property without the owner’s consent.

Different online practices have represented challenges for intellectual property: cybersquatting, typosquatting and digital libraries.

Cybersquatting is an operation realized on the Internet network that involves a violation of trademark. Indeed, it consists for a cyber-squatter to register domain names with the intention to sell the names to the right-owner of the trademark in order to make profit. Generally, the goal of this unlawful practice is to harm the goodwill of someone else’s trademark because the domain name represents a strategic issue for companies[34]. It is a way to have a commercial reputation but also to exchange on the values of the trademark all around the world. In this manner, cyber-squatters may destroy the reputation of a company if they communicate under a domain name similar to the brand.

Typosquatting is a form of cybersquatting which is based on mistakes made by the Internet users such as typographical mistakes when inputting a website address into the Internet search bar. The intention of the squatter is the same as in cybersquatting: impacting on the goodwill of the trademark’s owner.

Indeed, if users accidentally enter an incorrect website address, they may be led to another site not linked to the one they were looking for. French judges have sanctioned Typosquatting really strictly in 2011 because they considered that it may have an impact on the trade name of the “typosquatted” company. Moreover it is a counterfeit of the brand name but also a violation of the author’s rights[35].

Digital libraries are a collection of works digitized and made available to the public online. The library has become more virtual, accessible and moving. The works can be copied, duplicated. Thus, the public enjoys a free and continuous access to works via a simple Internet connection.

The undeniable advantage of these digital libraries is that they allow access to a wide audience. Thus they contribute to the effectiveness of the basic human freedoms such as freedom of information and the right to education.

Moreover, these digital cultural environments participate in the preservation of the most fragile works that time could deteriorate. Indeed through digitalization works are kept intact, thus contributing to the protection of the world’s cultural heritage.

Google’s founders had the idea to scan all the world's books through the Google Books service. Such service provides access to the full content of the work without always obtaining the prior consent of the author. If a work has fallen into the public domain, the access is free. Conversely, if the work is protected by copyright, the access to the full work can only be done with the copyright holder’s permission. Google also introduced an alternative in relation to these protected works: the ‘snippet view’ and ‘data mining’.

The snippet view provides 2 or 3 lines of a book page containing the searched term. Data mining is an informational purpose since it provides only bibliographic data on works and not an access to the content.

This service has been questioned in 2005 by authors who accused Google of digitally copying millions of books without permission[36]. However, in 2013, U.S. Circuit Judge Denny Chin ruled in favour of Google on the ground that its “scanning of more than 20 million book, and making ‘snippets’ of text available online, constituted fair use under U.S. copyright law”[37].

A second difficulty arises once the works are digitized and made available to the public on the Internet. The consumer may, too, be guilty of a violation of the author’s intellectual property rights through the download of the work without neither permission nor compensation.

Downloading digital books is possible under conditions: either the user copies because he or she receives permission from the author that he or she pays, or because the user meets the requirements of the private copying exception. This private copying is legal if there is an identity between the copyist and the user, if it is not intended for a collective professional use and if the source is lawful[38]. Therefore, it is necessary for the person who has made the work available online to receive prior permission. Finally, besides these three conditions, the realized private copying must meet the three-step test described above.

Digital culture has forced copyright to adapt itself to the digital creations. Thus, software, databases, audio-visual works and multimedia (e.g., video games) are also protected by copyright.

To tackle the issues brought by the dematerialization of works, the owners have to anticipate the threat of counterfeiting by establishing technological protection measures. The implementation of these prevents copying and facilitates the proof of counterfeiting when diverted.

Digital literacy is constantly moving and changing. It is very easy to copy, paste, reproduce, and reuse the information found therein. The effective protection of intellectual property in the digital environment is a real difficulty. This dematerialized world forced copyright to adapt to digital creations and to online information exchange practices.

If there is no effective protection of the authors in this new digital environment, innovation may turn off because the authors may not be keen to create anymore. It should be also noted that the lack of copyright protection indirectly violates the fundamental Community right of freedom to exercise a trade or profession.

As stated by Viviane Reding, former European Commissioner for Information Society and Media, the protection of intellectual property is used to “stimulate creativity and innovation”. Therefore, in order to preserve the evolving knowledge society we live in, we must anticipate copyright-related issues in the online environment. Thus, a balance between intellectual property and digital culture should be struck. Likewise a balance should be struck between the interests of copyright holders and the public interest to facilitate access to works.

That is the position of the International Federation of Library Associations and Institutions, which supports “a balanced law on copyright that encourages society as a whole by giving strong and effective protection to the interests of rights holders but also reasonable access in order to encourage creativity, innovation, research, education, and training”.[39]



1 - Statement made by the Special Rapporteur on Cultural Rights at the 28th session of the Human Rights Council, 11 March 2015 - http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15764&LangID=E  [retour]  

2- -WIPO, What is intellectual property? p. 19 - http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf  [retour]

3 - Mexico City Declaration on Cultural Policies – World Conference on Cultural Policies, 1982.  [retour]  

4 - The impact of culture on creativity – Study prepared for the European Commission, June 2009 - http://www.keanet.eu/docs/execsum_creativity_english%20.pdf  [retour]

5 - French Conseil Constitutionnel, Decision n°2004-499 - July 29, 2004.  [retour]

6 - United Nations Human Rights, Office of the High Commissioner for Human Rights, http://www.ohchr.org/EN/Issues/CulturalRights/Pages/impactofintellectualproperty.aspx  [retour]

7 - Section 201(b) of the U.S. Copyright Act.  [retour]

8 - Article L.131-3 of the French Intellectual Property Code.  [retour]

9 - WIPO stands for World Intellectual Property Organization and WTO stands for World Trade Organization.  [retour]

10 - Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (Marrakech, April 1994).  [retour]

11 - Article L122-2, penultimate paragraph of the French Intellectual property code.  [retour]

12 - Article 1, section 8 of the U.S. Constitution.  [retour]

13 - British Parliament, An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned, 1710.  [retour]

14- -Stanford University Libraries, Measuring fair use: the four factors, Copyright & Fair use, http://fairuse.stanford.edu/overview/fair-use/four-factors/
Columbia University Libraries, Copyright Advisory Office, What is fair use? http://copyright.columbia.edu/copyright/fair-use/what-is-fair-use/  [retour]

15 - The Economist, Still Murky. Is the Middle Kingdom getting serious about protecting intellectual property? April 21st 2012.  [retour]

16 - The 1791 and 1793 French royal decrees recognized the authors’ right of protection and property on their intellectual work.  [retour]

17 - Permanent mission of the People’s Republic of China to the United Nations Office at Geneva and other international organizations in Switzerland, The Cooperation Between China and the World Intellectual Property Organization (WIPO), April 19th, 2004, http://www.china-un.ch/eng/zmjg/jgjblc/t85562.htm  [retour]

18 - KASSNER G., “China’s IP Reform: State Interests Align with Intellectual Property Protection (Again)”, Harvard Journal of Law and Technology, April 24th 2012, http://jolt.law.harvard.edu/digest/patent/chinas-ip-reform-state-interests-align-with-intellectual-property-protection-again  [retour]

19 - UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore - http://portal.unesco.org/  [retour]

20 - UNESCO Recommendation… op. cit.  [retour]

21 - GRANDADAM S., “La tong de la discorde entre Havaianas et des chefs tribaux” [“The tong discord between Havaianas and tribal leaders”], Courrier International Magazine, February 24th 2015, http://www.courrierinternational.com/article/2015/02/18/la-tong-de-la-discorde-entre-havaianas-et-des-chefs-tribaux. NOVAES M. “As sandálias da polêmica” [“The controversy sandals”], El Pais Brazil, Fevruary 5th, 2015, http://brasil.elpais.com/brasil/2015/02/13/politica/1423839248_331372.html  [retour]

22 - Traditional culture and intellectual property: legitimate revendication or dangerous liaison? - Blog http://scinnfolex.com  [retour]

23 - TAPALEAO V., “Nike commits a cultural faux pas”, New Zeland Herald, August 14th, 2013, http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10912088  [retour]

24 - MASINA G., Cease the production of the Nike Pro Tattoo Tech Tights, Change.org, http://change.org - Petition addressed to Nike. Huffington Post, Nike Tattoo Leggings. Pulled After Deemed Exploitative Of Samoan Culture, http://www.huffingtonpost.com  [retour]

25 - New Zealand’s ONE news, Nike Apologies over Samoan tattoo-inspired tights, http://tvnz.co.nz/  [retour]

26 - ICESCR stands for International Covenant on Economic, Social and Cultural Rights, signed in 1966.  [retour]

27 - WIPO, Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions/Folklore, http://www.wipo.int/ip-development/en/agenda/flexibilities/resources/tk_gr_tce_f.html   [retour]

28 - WIPO, op. cit.  [retour]

29 - WIPO, Intellectual Property and the Traditional Cultural Expressions or Folklore Expressions, Brochure #1.  [retour]

30 - SERRES E., “Faut-il rendre les œuvres d’art ? Entretien avec Emmanuel Pierrat et Corinne Hershkovitch. [« Should we give back the works to the countries of origin? Interview with Emmanuel Pierrat and Corinne Hershkovitch”], L’Humanité, January 13th, 2012. http://www.humanite.fr/culture/faut-il-rendre-les-oeuvres-d’art-leurs-pays-d’origine%3F-487651  [retour]

31 - DAFFE M., “Les œuvres d'art doivent-elles être rendues à leur pays d'origine?” [Should artwork be given back to the origin countries?], Focus Le Vif, September 5th, 2014, http://focus.levif.be/culture/arts/les-oeuvres-d-art-doivent-elles-etre-rendues-a-leur-pays-d-origine/article-normal-260067.html  [retour]

32 - PIERRARD J. “Rendre les oeuvres d’art ? Aberrant !” [Restitution of art works? Absurd!], Le Point, June 11th, 2010, http://www.lepoint.fr/culture/rendre-les-oeuvres-d-art-aberrant-11-06-2010-465384_3.php  [retour]

33 - “Mid-Year counterfeit and piracy intelligence report”, Gieschen Consultancy, 2006.  [retour]

34 - LACHAUSSEE S., GARRONE P., “Cybersquatting : les procédures pour récupérer un nom de domaine.” [Cybersquatting: the proceeding to recover a domain name], Les Echos, http://m.lesechos.fr/redirect_article.php?id=cercle_76535#  [retour]

35 - Paris Court of Appel, Company Web Vision vs/ Company Trokers , Paris Court of Appel decision, November 30th, 2011, Case N° 09/17146  [retour]

36 - U.S. District Court, Southern District of New York, Authors Guild Inc et al v. Google Inc, No. 05-08136  [retour]

37 - STEMPEL J., “Google defeats authors in U.S. book-scanning lawsuit”, Reuters, November 14th, 2013, http://www.reuters.com/article/2013/11/14/us-google-books-idUSBRE9AD0TT20131114  [retour]

38 - Article L122-5 2° of the French Intellectual Property Code  [retour]

39 - IFLA, The IFLA Position on Copyright in the Digital Environment, 2000, http://www.ifla.org/publications/the-ifla-position-oncopyright-in-the-digital-environment-2000  [retour]

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