Cultural Rights

The assertion that “cultural rights” form part of human rights, as stated in the UNESCO Universal Declaration on Cultural Diversity, can only be taken as a reminder of the principles stated by Article 27 of the Universal Declaration of Human Rights and by articles 13 and 15 of the International Agreement on Social and Economic Rights.

This assertion may be taken as an indication of the kind of difficulties encountered in injecting any satisfactory efficiency into the various declarations asserting the existence of cultural rights. Nevertheless, the fact remains that this reiteration serves two purposes: the assertion that cultural rights follow along with the need to strive for cultural diversity; and the assertion that they are only conceivable as a part of human rights and thus cannot legitimise any infringement of these rights.

Cultural rights presented as instruments of cultural diversity tend primarily to preserve what has commonly become known as cultural identity. However, these rights must also preserve the conditions for developing the creation of cultural works the diversity of which must be maintained to achieve intellectual depth within culture.

It is now common to distinguish the right to preserve cultural artefacts from that of cultural activities. Traditionally, the need for a right of cultural heritage, ensuring the protection of tangible and intangible assets is no doubt more universally accepted than the need to protect and develop ways and means to allow for diversified cultural activities, even if history shows us numerous examples of the denial of these rights.

Many states or groups of states have, like France or the European Union, introduced laws intended to protect their heritage, namely by imposing constraints on its owners insuring its conservation and restricting or banning its displacement.

However, as wide-ranging as they may be, these state efforts are not enough. An international effort must complement and reinforce any national or regional effects. If heritage protection runs up against significant difficulty and hostility from art dealers’ lobbies protesting against restrictions introduced by these laws on commercial circulation of great and historical works, it is all the more difficult to guarantee diversity of cultural practice whilst respecting the cultural identity of artists’ and creators’.

Following this stream of thought, recognition of regional languages would constitute an effort for maintaining or even revitalising cultural traditions stifled by state centralism or colonialism. However, these efforts, aside from the fact that they constitute extremely fragile safeguards against the mechanisms of the world markets, in no way guarantee creativity, without which cultural tradition is little more than folklore. Rights intended to favour creativity can back up mechanisms for creation or develop incentives in support of authors.

Within the audiovisual industries, a system of national or regional quotas, largely supported by the industry in France, constitutes one of the means of preserving space where cultural identity can be expressed. The cultural exception which these quotas should reinforce is in fact presented as an indispensable instrument for real cultural diversity. In other sectors, legislative or conventional price controls have insured protection of cultural channels in order to prevent the concentration of distribution circuits crushing independent production. Protection of works, or, more accurately, of their access to the marketplace, is not enough. A different and unrelenting effort is required, one which improves the situation of creators.

Protective measures put into place for creators can be defined around the recognition of authors’ rights. However, aside from the fact that this notion has certainly been diluted through the assimilation of intellectual property rights – notably on computer software - which have little to do with cultural creation, authors rights are subject to an ambiguous statute. Traditionally, at least under French law, authors’ rights are seen as the means by which authors may harvest the fruits of sales of their patrimonial rights as well as protect their moral rights; however, they are largely seen as the means of accumulation of intellectual capital by cultural industries.

By conceding patrimonial rights to exhibitors, any afforded protection has also covered a significant growth on the part of cultural industrialists in the global economy. For their part, European Community texts, by limiting the duration of exclusive operating licensing, rental and leasing rights, and software and database regulations, are preparing to impose new frameworks adapted to the information society. In so doing, they will be favouring investors and ignoring creators. The priority is with the businesses that exploit these rights.

The imbalance will be further exacerbated with the signing of the TRIPS (1) agreements, in which a similar logic is to be found. The text leans towards a restricted interpretation of authors’ rights, which, as the agreement specifies in one of its conditions, “must not constitute obstacles to legitimate commerce.”

The consideration of intellectual property as a tool for international commerce follows its logic right through by purposefully sidelining moral rights. Interests of creators are not taken into account by EU legislators. The ambiguity of cultural rights weakens their condition, against the thrust of an EU and world judicial order whose preoccupations remain mainly economical. Faced with the weighing down the very foundations of rights and culture, reaffirming the place of cultural rights as enshrined within human rights would offer a sign of resistance to a movement reducing some rights to a simple matter of economics.

Finally, asserting the place of cultural rights within human rights opens up several dimensions. Firstly, the universality and importance of these rights are proclaimed. Next, any possible contradiction between human and cultural rights is implicitly negated. The latter cannot justify any violations of the former. There cannot be, or more accurately should not be any contradiction between human and cultural rights. As satisfying as it may seem, asserting an interdependence runs the risk of resembling some petition or nice utopia, which state practice or social group action will often ignore. Seen in another light, there remains uncertainty over the nature of cultural rights.

Traditionally, civil rights and policies opposable to the state and social rights demanded from the same state can themselves be opposed. The former require the state to respect the rights of its subjects, and, if need be, put into place legal instruments allowing subjects to acquire these rights. The latter require state intervention to indebt itself and provide for the welfare of its legal subjects. Cultural rights are certainly not homogenous. For, as well as autonomous rights applied to civil rights and policies, and to economic and social rights, cultural rights are also modes of exercise of human rights, or at least of certain ones. In any case, states are central to all these measures. Yet, their role is ambiguous.

These divergences, some of which are essential, bring out both the necessity and the difficulty of effectively introducing these rights, which cannot be left entirely to state discretion. Thus the burning question of what legal instrument could be put into place within the current international order.


(1) TRIPS : WTO Agreement on those aspects of intellectual property rights relating to commerce. The purpose of this agreement is to iron out the differences in which these rights are protected throughout the world and to subjugate them to common international rules. (source: WTO)



(This article synthesises a longer study by the same author. It can be found in French at the following address : Les droits culturels)