The Regulation of Creativity Under the WIPO Internet Treaties

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WIPO Internet Treaties) recite a need for a digital copyright framework to facilitate 'adequate solutions to questions raised by new economic, social, cultural and technological developments.' It can hardly be contested that the social and cultural developments to which the Treaties refer do not derive from the cultural or economic conditions (much less technological developments) of the developing and least-developed countries. Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. Recently, however, the rise of Web 2.0 and the salience of new forms of creativity mediated by digital technologies and social networking sites have exposed structural tensions in copyright laws of OECD countries similar to those which developing countries have historically raised in opposition to the Berne Convention. This Essay reviews the evolution of the WIPO Internet Treaties and argues that the framework established just over a decade ago is increasingly less relevant in addressing the challenges of creativity in the digital age. The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression. The growing social and legal recognition of new forms of creativity enabled through digital technologies offers an important opportunity to challenge anew claims that globally mandated copyright norms can effect incentives to create that are relevant across geographical, cultural and technological boundaries.