Title: Legal action against asserted cultural genocide and piracy in China: the strength of the WTO and the weakness of the UNESCO

Authors: Christophe Germann

Addresses: 14, rue Francois Grast (1er etage), CH-1208 Geneve, Switzerland

Abstract: The new UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005 is supposed to elevate cultural diversity concerns to a level playing field with trade concerns. However, a critical assessment of this soft law instrument shows that it turned out to be essentially an inventory of political claims for rich and democratic welfare states. This means that this agreement will arguably not improve the situation of a majority of the people in the world. This paper shall seek to verify this opinion in the light of a case study on China. This country currently faces the allegation that she perpetrates cultural genocide in Tibet. At the same time, in a recent WTO dispute resolution procedure, China had to respond to the claim that she does not provide sufficient copyright and trade mark protection in violation of her commitments under the TRIPS Agreement. This paper argues that the outcome of this WTO litigation can have a negative impact on cultural diversity.

Keywords: intellectual property management; cultural expression; cultural diversity; piracy; World Trade Organization; WTO; United Nations Educational, Scientific and Cultural Organisation; UNESCO; Agreement on Trade-Related Aspects of Intellectual Property Rights; TRIPS; cultural industries; Convention on the Protection and Promotion of the Diversity of Cultural Expressions; China; cultural genocide; Tibet; copyright protection; trade mark protection; creative industries; law.

DOI: 10.1504/IJIPM.2010.029751

International Journal of Intellectual Property Management, 2010 Vol.4 No.1/2, pp.65 - 95

Published online: 01 Dec 2009 *

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