Intellectual Property and Traditional Cultural Expressions in a Digital Environment
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Intellectual Property and Traditional Cultural Expressions in a Digital Environment

Edited by Christoph Beat Graber and Mira Burri-Nenova

In the face of increasing globalisation, and a collision between global communication systems and local traditions, this book offers innovative trans-disciplinary analyses of the value of traditional cultural expressions (TCE) and suggests appropriate protection mechanisms for them. It combines approaches from history, philosophy, anthropology, sociology and law, and charts previously untravelled paths for developing new policy tools and legal designs that go beyond conventional copyright models. Its authors extend their reflections to a consideration of the specific features of the digital environment, which, despite enhancing the risks of misappropriation of traditional knowledge and creativity, may equally offer new opportunities for revitalising indigenous peoples’ values and provide for the sustainability of TCE.
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Chapter 4: Human Rights, Cultural Property and Intellectual Property: Three Concepts in Search of a Relationship

Fiona Macmillan


Fiona Macmillan 1. INTRODUCTION A concern with the concept of “human rights” has become the great millennial obsession. This is not to suggest that any major steps have been made with respect to the improved recognition or enforcement of some of the most basic rights generally recognised as falling within the “human rights” camp. However, we have emerged from one of the bloodiest and most violent centuries of human history with a renewed respect for the idea of human rights. In a wide range of literature, academic and activist, this plays itself out by regarding the characterisation of something as a human right as a “trump card”, that is, as the end to all arguments. This may be a worthy phenomenon, but it carries with it implicit dangers. If everything that seems a good or fair or morally defensible thing automatically becomes a “human right” then every so-called human right is reduced to the symbolic and legal significance of the most banal and the very idea of “human rights” as the unsurpassable moral high ground, the trumps of trumps, disappears. This is a particularly undesirable state of affairs in a world where it is already the case, at least in the context of international legal governance, that human rights are not a trump card.1 1 See Robert Howse, “Human Rights in the WTO: Whose Rights, What Humanity?” (2002) European Journal of International Law 13:3, pp. 651–659; Fiona Macmillan, “International Economic Law and Public International Law: Strangers in the...

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