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 10: New Information and Communication Technologies, Traditional Cultural Expressions and Intellectual Property Lawmaking – A Polemic Comment

Herbert Burkert


Herbert Burkert 1. INTRODUCTION: ABOUT CONCEPTS This comment is about concepts: How does law perceive the challenges of information and communication technologies, how does this relate to the way in which traditional cultural expressions (TCE) are perceived and the way in which information and communication technologies are seen to be useful for these expressions? The characteristics of information and communication technologies as such and their role in the (present and future) protection and promotion of TCE are exhaustively covered in the contribution by Mira Burri-Nenova to this volume.1 This justifies a concentration on such conceptual issues. It will be argued that there is a predominant pattern in law’s responses to information and communication technology which, in the case of lawmaking for TCE in an information and communication technologies environment, meets with what will be called “International Bad Conscience Lawmaking”, leading to a series of misled approaches, such as an obsessive repetitive disorder in lawmaking (to be exemplified by recent efforts of the World Intellectual Property Organization, WIPO) and – in an attempt to deny such a bad conscience – to a display of narcissistic behavior (exemplified by the recent Convention on the Protection and Promotion of the Diversity of Cultural Expressions2 of the United Nations Educational, Social and Cultural 1 In the mentioned contribution, the technologies dwelt upon are referred to as “digital technologies” and associated above all with digitisation and the advent of the Internet. In the present text, the broader concept of “information and communication technologies” is used, which includes...

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