Published online by Cambridge University Press: 05 June 2012
The whole of human development is derivative. We stand on the shoulders of the scientists, artists and craftsmen who preceded us. We borrow and develop what they have done; not necessarily as parasites but simply as the next generation. (Laddie 1996, p. 259)
Human development is a cultural process. As a biological species, humans are defined in terms of our cultural participation. (Rogoff 2003, p. 3)
This chapter examines the relationship between copyright protection and the encouragement of creative expression by individuals and communities. It begins by exploring concepts of culture and cultural diversity as promoted by international organizations including the United Nations Educational, Scientific and Cultural Organization (UNESCO). It poses the question as to whether copyright law, in its current formulations, adequately promotes a diversity of cultural expressions by persons and peoples of all backgrounds. It evaluates the conventional rhetoric that copyright incentivizes the arts by protecting the material and moral interests of creators. It does this by exploring trends in copyright protection and ownership, including corporate ownership, highlighting some notable differences in the experiences of creators in different sectors, world regions and local contexts. Does the copyright lacuna in some sectors and contexts suggest that other incentives and motivations might be at work in spurring creative activity? The example of contemporary art is discussed as a case study, to illustrate the ambiguities faced by creators in some sectors in relation to copyright protection for their works, along with their potential infringement of copyright over other works.
Since many creators are both copyright owners and active users of other persons’ protected works, a simple dichotomy cannot be drawn between rights owners and end users. Indeed, the line between ‘producer’ and ‘consumer’ of cultural works is increasingly blurred, with digital technology and the Internet making it ever easier for users to ‘cut and paste’ and ‘remix’ existing works. What challenges do such phenomena pose for copyright law? The second part of the chapter looks at ‘public access’ to cultural works under existing copyright frameworks. It investigates whether access is provided on terms that ultimately enhance the capabilities of individuals or communities for free, creative expression.