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CRIS+ statement on the need to balance 'intellectual property' language in article 7 of UNESCO draft text

Delivered to the plenary of the second intergovernmental session of the draft UNESCO convention on cultural diversity (convention on the protection and promotion of cultural contents and artistic expressions).

Thank you. I'm speaking on behalf of the communication rights campaign, representing a position signed by over 100 NGOs, including the International Association of Media and Communication Researchers, and the World Association of Community Radio Broadcasters, both of which have consultative status A with UNESCO.

The Action Plan of the UNESCO Universal Declaration on Cultural Diversity, paragraph 16, calls for: "Ensuring protection of copyright and related rights in the interest of the development of contemporary creativity and fair remuneration for creative work, while at the same time upholding a public right of access to culture, in accordance with Article 27 of the Universal Declaration of Human Rights."

Article 27 of the Universal Declaration of Human Rights states:

(1) 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.

(2) 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.

In this way, both Declarations balance the rights of all to access, enjoy and participate in culture with the rights of authors to protect their moral and material interests. However, as currently written, especially in the clauses on 'Intellectual Property Rights,' this draft Convention suggests that the rights of the owners of cultural expressions are superior to the rights of all people to access, enjoy, and participate in culture. Please remember here also that rights owners are often NOT the creators themselves, by the way, and that the public domain is currently in danger of being eroded by overly lengthy copyright terms, in some cases now extending to almost a century after the death of the author. We urge that this Convention reflect the balance between copyright owners and the public, in accordance with the Universal Declaration of Human Rights and the UNESCO Universal Declaration on Cultural Diversity.

Therefore, we believe that Article 7, paragraph 2(b) should be deleted, since it fails to find that balance.

If it's not deleted, it should be revised to read as follows:

"(b) that the role of the public domain and the cultural commons are fully recognised, in making freely available to all the essential raw material for cultural creativity;"

[and] "(c) that copyright and related rights are fully respected and enforced, with an appropriate balance between the right of authors to their moral and material interests, and the right of all to freely participate in the cultural life of the community and to enjoy the arts."

It is especially important to delete the phrase: "particularly through the development or strengthening of measures against piracy" from paragraph 2 (b). We ask the legal adviser whether there is any definition of piracy in UNESCO? If not, we caution the plenary that if this clause is included you'll have to define piracy, and we suggest that WIPO would be a more appropriate forum for that discussion.

As we have expressed above, this change reflects the need to to balance the rights of authors and the rights of the public, in accordance with the UDHR and the UNESCO Universal Declaration on Cultural Diversity. This balance is a cross-cutting concern, and should also be reflected when we get to the Preamble.

As for the other clauses,
In Article 7, paragraph 1(a) we support retaining the reference to minorities and indigenous peoples.
Finally, we support the Brasilians and many other delegates on proposal (g).
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