13 October 2005


One of the areas that copyright handles poorly—yeah, only one, implying that there is more than one—is the relationship between original art (whatever that is) and cultural artifacts (whatever they are). A story in today's NYT on the ongoing UNESCO fiasco illustrates this rather nicely.

Sponsored by France and Canada, two countries that have long used subsidies and quotas to help their movie, television and radio industries to hold back American popular culture, the convention was inspired by a desire to shield culture from international agreements to liberalize trade. But the final draft falls short of original intentions. Indeed, without "teeth" to enforce its principles, many experts expect the convention to have little impact on what is already a globalized market for cultural products, one in which India's Bollywood, Japanese animation movies and Brazilian and Mexican television soap operas have a place alongside Hollywood blockbusters. The United States nonetheless believes that the final draft is open to misunderstandings that could allow governments to control culture, even through censorship, and to block the free flow of ideas and information, its euphemism for Hollywood's exports.

In one sense, of course, another negative American vote next week will change little. The convention will be adopted and, once ratified by 30 countries, will go into effect. The United States will not sign it and, as with the Kyoto Protocol climate treaty and the treaty creating the International Criminal Court, will probably remain a critical—and perhaps obstructionist—outsider.

Alan Riding, "U.S. Stands Alone on UNESCO Cultural Issue" (13 Oct 2005) (fake paragraphing removed for clarity; emphasis added).

Frankly, the real problem with this "amendment"—and the criticisms of its language are, if anything, understated; it's a piece of writing of which sixth-graders should be ashamed—comes not from its substance, nor its aims, but from its sponsors. Or, at least, one of them. No nation that has dictionary police who refuse to allow even technical terms to enter the "approved" lexicon from foreign languages has any business attempting to regulate the transfer of culture and creativity between or within nations. Historically, French "cultural imperialism" has been more invidious than anyone else except England (and that only because the sheer size of the British Empire inevitably led to that result).

Personally, I think that French pride has been harmed forever because French fell out of favor as the language of diplomacy early in the twentieth century, and a hundred years later the nation is waking up to its relative political irrelevance on the global stage. (But then, I'm just a German-Ashkenazim mongrel, so…) Perhaps the greatest symbol of this is the continued insistance on having a French alternative name for organizations that conduct their business largely in English, the paradigmatic example of which was NATO. That the acronym for this organization was OTAN—the exact inverse—is just too ironic for words.

In any event, the real problem here is one of degree, not one of kind. Every nation has the right, and indeed obligation, to preserve its indigenous cultures (whatever they are). Conversely, no nation has the right, or obligation, to determine that cultural osmosis runs only one way. The "Lion Sleeps Tonight" matter ongoing in South Africa is an excellent example of using copyright law in an attempt to create a cultural osmotic membrane by selecting which elements of a common culture get copyright protection and which do not. (Sounds like another law review article, doesn't it?) The problem with the proposed treaty language is that it tried to pretend that a one-way osmotic cultural membrane is not just possible, but desireable; and that is the kind of intellectual laziness that I've come to expect from Hollywood, not from those attacking the pernicious aspects of its influence.