Keywords

Cultural Rights, Casa de la Cultura Ecuatoriana, Copyright and Related Rights, Collective Management Societies, Legal Tools.

Introduction

The plurinationality of Ecuador configures a particular interest aimed at conducting an analysis on the management of cultural rights within the legal landscape, allowing us to identify how they are constituted, how has been the path of cultural rights in Ecuador until today, as well as the impact of the institutions involved and the role of the Ecuadorian House of Culture in the management of cultural rights; we will also propose, within the current legal framework, tools that could serve as a legal alternative for the management of cultural rights in a post-pandemic scenario, where the economies of countries like Ecuador, seriously affect the cultural sector.

Focusing on an analysis regarding the fulfillment of cultural rights in Ecuador can lead us to different edges and analysis of equally plural approaches, so here we intend to do it from the normative historical context that concerns Ecuador, therefore, it is necessary to start from the Magna Carta and look at the path of what is now understood by cultural rights in Ecuador.

The present research work intends to make a historical and theoretical account of the legal framework for the protection of specific rights and to present, from the respective analysis, alternatives for the correct compliance, protection and guarantee of such rights; as well as to offer a theoretical product that encourages the construction and creation of knowledge around the explained subject matter.

Theoretical Background

Cultural Rights in Ecuador

From 1929 to the 1967 Constitution, it combines characteristics of the liberal state and the social state, based on a predominant legal structure for the protection of property rights and private law. This is where cultural rights appear textually in the Constitution, amid a conjuncture of strong conflicts both internal, as well as border military and one (or two) world war. As we find it in Borja (2019), after the war conflict suffered from Peru in 1941, in Ecuador, looking for national encouragement, the Casa de la Cultura Ecuatoriana is created through the executive decree 707 of 1944 ordered by the then President José María Velasco Ibarra, who months before had assumed the leadership of the country after the overthrow of Arroyo del Río, architect in 1943 of the Instituto Cultural Ecuatoriano that later became the Casa de la Cultura Ecuatoriana. It will be until today that such cultural institution is medullar in the exercise, enjoyment and enjoyment of cultural rights in the country (Caicho, 2019).

The context puts in front the 1945 Constitution where social and cultural rights are recognized, but with little validity. There are 144 articles where we read for the first time the section: Education and Culture; it also highlights the freedom for scientific research and artistic creation, free public expression. Article 145 protects artistic, historical, and natural wealth.

The institution of the Casa de la Culture was always present and was a protagonist in the history of the management of cultural rights, even after the Constituent Assembly convened by the president at that time, another historical leader: José Maria Velasco Ibarra, promoted the 1946 Constitution with an important conservative cut: it again invokes the Ecuadorian people in the name of God, and with regard to cultural rights, the content of articles 144 and 145 of the previous one disappears, it only refers to article 6 which tends to an international hegemony, since it says that for the defence of common economic, political and cultural interests, Ecuador will collaborate especially with the Ibero-American states, because it has links of identity of origin and culture. It will be able to form associations with these states for the defense of its interests.

The international context shows a Europe destroyed by the Nazi advance, which falls into the hands of the allied states, which gives way to the United Nations Organization, in whose General Assembly the Universal Declaration of Human Rights is adopted, and recognizes the human right to obtain from the States the satisfaction of the economic, social and cultural rights, indispensable to the dignity and the development of the free personality; also to participate freely in the cultural life of the community, to enjoy the arts, scientific progress, the protection of the moral and material interests resulting from one's scientific, artistic or literary productions (Avila, 2012).

This recognition will generate a turning point in the history of the development of human rights and therefore of cultural rights since it gives way to an international system of protection of rights, the legal consequence of the approval and ratification by the States Parties, and in our case of the Ecuadorian state. Then came the Constitutions of 1968, 1979 and 1998 where the recognition of rights ("of man"-of the person-civil rights) are express. The State guarantees free access to culture and to the social and economic improvement of citizens; free participation in the cultural life of the community and scientific research; the right to research and free access to its sources; freedom of religious belief and worship. In the 1998 Constitution, in particular, the repertoire of rights was expanded, but as years before, within a scenario of political, economic and social upheaval, with an overthrown president and a repeated history without memory. Of note is the recognition of the diversity of regions, peoples, ethnic groups and cultures in the country, as well as its introduction to the international human rights system, recognizing itself as a social state under the rule of law? The chapter on economic, social and cultural rights is introduced and the seventh section develops the rights of culture, affirming the leading role of the CCE in Ecuador's cultural scene and granting it economic and administrative autonomy. In other words, this is the first time that cultural rights have been progressively developed in the constitutional text.

Cultural Rights in the Current Ecuadorian Constitution

The historical opportunity to transcend in the exercise of cultural rights is opened with the still valid Constitution of the Republic of Ecuador (National Assembly of Ecuador, 2016) because it proposes a national system of culture with the purpose of strengthening the national identity, protecting and promoting the diversity of cultural manifestations guaranteeing the full exercise of cultural rights. The system integrates all the institutions of the cultural sphere whose rector is the state itself through the Ministry of Culture. It also proclaims in Article 424 the supra-constitutional nature of international human rights treaties ratified by Ecuador, since they prevail over any other legal norm or act of public power including the Constitution itself, the application of these rights are of direct and immediate intervention, under the principle of pro-human being without the restriction of rights. This is also dictated by the human rights manual published by the Ministry of the Interior, which is, or should be, a basic application guide for all public servants (Ministry of the interior, 2015).

Despite the existence of express norms, there seemed to be no serious political agenda. The disarticulation of the cultural policies of the institutions in charge of it, and the continuous anachronistic practices, resulted detrimental to said system of culture evidenced from the tacit breach to the first transitory provision of the Constitution, which in its fifth numeral provided the legislative body a term of 360 days to approve the laws regulating the cultural sector, however, these appeared in the Ecuadorian legal landscape only on December 30, 2016, and it's regulation on June 06, 2017, several years outside the constituent term. The passage of time shows the idleness of the political and governmental power in respecting the constitutional mandate, as well as the ineffective exercise of cultural rights contrary to the open clause of the aforementioned article 424: which implies protection and immediate applicability. It is also understood in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (1966), which together with the International Covenant on Civil and Political Rights, form the International Bill of Human Rights to which Ecuador is a party, therefore, of binding effect.

The institutions belonging to the so-called System of Culture maintained their structures without major changes as long as there was no Law and Regulations for their applicability, that is, for almost 10 years. This was the case of the Casa de la Cultura Ecuatoriana (hereinafter CCE) which, in accordance with the 1998 Constitution in use of its economic and administrative autonomy, and regulated by its special law, statute and regulations, continued to manage itself without considering the substantial difference with the 2008 Constitution where the Institution is part of a Culture System directed by the Ministry of Culture, repealing the special law and regulations that proposed an administrative organizational structure different from what the new National Culture System foresees; sustaining a management model between National Headquarters and provincial Nuclei, incompatible with the new Culture System. These years of non-compliance of the Legislative provoked administrative, political, economic and legal conflicts between the National Headquarters, Provincial Nuclei of the CCE and cultural actors and managers since the Law or the current Regulations have been observed at the convenience of those who preside the Institutions, this shows divisions and conflicts of power within the same institution, emblem of Ecuadorian Culture, taken to judicial scenarios (Provincial Court of Justice Azuay, 2019).

Towards a New Form of Cultural Rights Management

The ineffectiveness of a disarticulated cultural system prevents the presence of Ecuadorian cultural markets or industries, which have been diminished as a consequence of the pandemic. The state institutions of the cultural sector have not achieved their purposes, therefore, they repeat the patterns of a deficient cultural sector, dispersed and historically left to the background by the rulers in office; not by coincidence between the years 2008 and 2021 more than 12 Ministers of Culture have passed and a cultural public policy that sets in motion the so-called Culture System is not yet defined (Borja, 2019).

It is necessary and urgent to rethink new ways of managing cultural rights in favour of the cultural sector in general, not only of individual and dispersed groups, now more so in an era when technology is developing rapidly stimulating the mass consumption of entertainment, artistic and cultural products. The confinement increased the use of streaming platforms; however, it is noticeable the absence of leading national platforms that disseminate cultural and entertainment products for the benefit of Ecuadorian actors, managers and / or producers, the beneficiaries are still mostly hegemonic and international, with greater interest in a video game and music platforms (Ortega-Vivanco, 2020).

The protagonism of the Casa de la Cultura Ecuatoriana is essential as it is at the neuralgic point of the exercise, expression and dissemination of cultural rights as textually mandated by the current Constitution; in addition, its historical legitimacy, as we have pointed out, makes the House that embraces the Ecuadorian cultural sector its central axis.

The House of Ecuadorian Culture should take the lead towards a new way of managing cultural rights, generating different dynamics that are sustainable for the actors, managers and protagonists of the Ecuadorian cultural scene for which we propose legal tools that are adapted to the current reality and the needs of the sector in a post-pandemic era.

Legal Tools for the Development of Cultural Rights

Trujillo (2015) states that the Organic Code of the Social Economy of Knowledge, Creativity and Innovation, means in spirit, the passage from a cognitive capitalism to a social economy of knowledge, although its implementation presents difficulties when articulating knowledge production networks; however, it is highlighted that this Law, has a conception of knowledge from the point of view of a good that should be of public interest and that tends to its democratization (Coloma, 2016). This is corroborated by the controversial content of article 87 ibidem, when it states that the goods that guarantee fundamental rights and are protected by intellectual property rights, are of public interest and will enjoy a type of protection that allows satisfying the basic needs of society, even allowing other uses without the authorization of the holder and in accordance with the provisions of the COESCCI and international treaties to which Ecuador is a party; intellectual property rights constitute then, an unavoidable tool for an adequate management of knowledge, copyright and related rights, as well as for the development of creative activity that should contribute to access to knowledge, technology and culture (Barrezueta, 2016).

The so-called democratization of knowledge becomes effective when scientific progress guarantees participation and collective benefits. When artistic, scientific or literary productions take part, in freedom, of the cultural life of communities, ergo, there is a right to the protection of the moral and material interests of the authors, a right that is clearly and in detail developed by the Committee on Economic, Social and Cultural Rights of the United Nations Organization (National Service for Intellectual Rights. (2021).

As mentioned ut supra, the 2008 Constitution states that the National Culture System guarantees the exercise of cultural rights and aims to: "strengthen national identity, protect and promote the diversity of cultural expressions, encourage free artistic creation and the production, dissemination, distribution and enjoyment of cultural goods and services; and safeguard social memory and cultural heritage". Of these cultural rights, the purpose of the CCE is to be the space of common encounter, of coexistence and exercise of these rights; the production, circulation, access to works, goods and artistic, cultural and patrimonial services, for which the Organic Law of Culture grants it competencies related to the promotion of the arts and other expressions of culture, to the promotion of creators, actors, managers and collectives.

All these competencies pave the legal way so that in this so-called "new normality" the CCE can fulfil its purpose through the use of digital platforms for circulation, promotion and dissemination of content, linking the various physical spaces of the House -theaters, exhibition halls, movie theaters, museums, pictorial heritage, and other heritage assets or cultural products-; platforms that allow streaming and downloading of artistic products for the management of copyrights and related rights, through Collective Management Societies, since it seems that the true value of copyrights and related rights in creative activities, which is the seed of cultural and artistic industries, does not exist in practice.

For this purpose, Title II, Article 100 and following, of the referred Code of the Social Economy of Knowledge, Creativity and Innovation, regulates the Copyright and Related Rights, which is the branch of Intellectual Property that is of interest in this approach, because through them the work and the exclusive rights that the author, performer, producer of a phonogram or audiovisual products, publishers, etc., have rights over such work are protected. According to our legislation, the mechanism for the management of Copyrights and Related Rights are the Collective Management Societies, hereinafter referred to as SGC, legitimized in several legislations of other countries as a generalized practice of the world copyright system, based on international treaties, covenants and other resolutions or consultations made by the Andean Community or the Advisory Council on the matter, and which are binding for the Ecuadorian state. The GSCs have their historical antecedent in France in the mid-18th century (Cerlac, 1988). The approval for the operation of the same is made by the Ecuadorian state through the authority on intellectual property, currently the National Service of Intellectual Rights -SENADI- who verifies compliance with the requirements, in addition to being responsible for the follow-up and monitoring in the fulfilment of its work. According to Ecuadorian legislation, the SGCs are non-profit legal entities, whose corporate purpose is the collective management of copyright and/or related rights. In other countries, such as Mexico: “Satisfy a need of a general nature that is not considered by law as a public service and can be developed directly by private individuals (...) the service is provided by virtue of a state permit, license or authorization that allows the exercise of a restricted individual right in compliance with a special legal regulation and a compulsory tariff. (Cerlac, 1988)”.

In Ecuador there are currently five Collective Management Societies in operation: Sayce, Soprofon, Sarime, Egeda Ecuador and Uniarte; the first exclusively for authors and composers, the second for phonographic producers, the third for performers and the last two for audio-visual producers and audio-visual artists and authors (National Service for Intellectual Rights, 2021). The first three are dedicated exclusively to the management of copyrights and related rights of the music scene in Ecuador since 1999 and the last two in charge of the management of the same rights in terms of audiovisual producers, authors and audiovisual artists, since 2001 and 2015. It is evident that the music industry has been transformed, more so now with the use of technology and algorithms that determine the forms of dissemination of content; however when talking about Ecuador, the structures of the first three GSCs continue to sustain anachronistic models, in which, both for the monitoring or follow-up of the managed works -even to distinguish the quality of partner-both Sayce, SARIME and SOPROFON rely on traditional media such as Television, cable television, Broadcasting or presentations in public shows or by the volume of their productions (Sayce, 2021).

The aforementioned has also triggered legal actions between partners and directors of Sayce which is the first SGC in Ecuador, and the only one that welcomes authors and composers of musical works. As Restrepo (2013) points out: "artists face strong difficulties in the Ecuadorian context if they want to make a living from art, the most common thing is that they have to resort to another professional activity or trade to subsist, this added to a kind of myth that chains the success of an artist with a supposed relationship of leverage in public institutions or power. Both realities complicate the effect of actions to support and sustain artistic activity."

Methodology

The specific objective of this work is to generate an alternative for the management of cultural rights that will energize the cultural sector during the post-pandemic period in Ecuador. To this end, the specific objectives were established as follows: (1) To review the current state of the laws related to cultural rights in Ecuador. (2) To analyse the new forms of circulation of cultural goods and contents during the pandemic. (3) To propose legal tools that allows a new management model for the Ecuadorian House of Culture, through the effective application of copyrights. Such objectives are reached by means of a documentary design, being based on the legal analysis of norms and the current legal system; therefore, the materials used have been the following:

National

1. History of the 20 Constitutions of Ecuador.

2. Organic Code of the Social Economy of Knowledge.

3. Regulations to the Organic Code of the Social Economy of Knowledge.

4. Organic Law of Culture.

5. Regulation of the Organic Law of Culture.

6. Regulations for the operation of the nuclei of the Casa de Cultura Ecuatoriana.

International

1. Universal Declaration of Human Rights

2. International Bill of Human Rights.

3. General Comment 21 of the Committee on Economic, Social and Cultural Rights.

Based on these documents, a socio-historical review of cultural rights in Ecuador and a socio-historical-legal review of the Casa de la Cultura Ecuatoriana-CCE- and the Sociedades de Gestión Colectiva-SGC- in Ecuador were carried out, thus determining the identification of the legal tools subscribed referred to the cultural sector and that could be applied during the post-pandemic scenario. Subsequently, the incorporation of the legal alternative called "Collective Management Societies" was arranged through a comparison with the current regulations and an expert evaluation. A total of 4 experts were consulted, 2 belonging to the legal field and 2 music producers with more than 10 years of experience in their respective areas. During the interviews, the feasibility of the application of "Collective Management Societies" within the current legal regulations and their possible advantages for the cultural sector was analysed.

Results

The CCE enjoys a historical prominence in the name of cultural rights. In the current global context, it invites the cultural sector to reinvent itself and reinvent itself in the face of these new ways of life-based on covid-19. The fulfilment of its competencies and legal attributions, being a central axis for the production, circulation and access to artistic and cultural works, goods and services, proposes to devise ways to manage cultural rights with budget cuts and in the face of a deficient Culture System, so our proposal is the creation of a digital ecosystem whose environment allows the development of certain areas of a culture whose consumption is more massive than others, such as cinema, music and audio-visual products involving theatrical offerings and live arts, dissemination of tangible and intangible heritage, and thus through Collective Management Societies, copyright and related rights are administered jointly using physical spaces with permitted capacity to create a dynamic of national consumption necessary to generate local cultural industries. This is also perfectly valid when the Organic Law of Culture of the National Assembly of Ecuador (2016) especially in its articles 10, 159 and 160 refers to the Single Registry of Artists and Cultural Managers -RUAC- in which the professionals of Culture and Art, that is, creators, producers, managers, technicians or workers of the sector, who will also be part of the Provincial Assembly of the CCE Nuclei, empowered to elect and be elected as representatives to directive bodies of the Institution. This facilitates their associativity for the operation, authorization and decisions of the CCE's Collective Management Societies.

Fulfil its obligations from a digital ecosystem that allows the management of cultural rights using collective management societies as a central tool to activate the entire physical structure that makes up the House: theatres, agora, museums, exhibition spaces, micro theatres, historical archives, audio-visual archives, among others, and online or streaming events, whose collection is made by the SGC of the corresponding CCE (music, audio-visual production, theatre, cultural events of mass attendance or consumption), and whose statute allows an equitable distribution among its members of the corresponding values and in accordance with the provisions of the COESCCI.

The structure of the CCE can give rise to the creation and operation of the SGCs through the Provincial Assemblies and their Provincial Boards, as authorized by Articles 160, 164 paragraphs a), b), c), g) and especially h) of the Organic Law of Culture, and Article 11 paragraphs a), b) and c) of the Regulations for the operation of the Provincial Nuclei of the Benjamín Carrión House of Ecuadorian Culture.

In short, there is fruitful ground in terms of national production and changes in the traditional models of dissemination and commercialization of contents with the rapid advent of technology, which would allow the elimination of certain informal practices of cultural activities. In practice, the CCE has been hindered at the time of collecting values for artistic or cultural presentations in theaters or spaces where a box office can be charged and that directly serves the managers, producers, actors, or independent artists themselves, since the impediment comes with the legal provision contained in Articles 70 and 163, third paragraph, of the Organic Code of Planning and Public Finances which implies that all the institutions, entities and organisms of the State are governed by the National System of Public Finances, which means that all the public financial resources obtained, collected or received must be credited to the accounts of the Central Bank; that is to say, that box office could not go to the producers, artists, authors of the work. Here the figure of Collective Management Society from the CCE is important to overcome this legal obstacle because the SGC are non-profit companies, therefore, does not respond to the Companies Law and would not be subject to the supervision and control of the Superintendence of Companies. Neither is it a public company since its legal nature is not subject to the provisions of the Law of Public Companies of Ecuador and finally, the collections it makes are not public funds, since its exclusive function is to manage copyrights and related rights, equitably distributing the proceeds, according to what its Bylaws propose and agree upon.

The CCE, in addition to making the creation of GSCs viable for the administration of copyright and related rights through its digital platform, opens the way for the formalization of cultural industry with a national vision based on cultural needs and consumption. Its work would be similar to that of a Publishing House that manages and disseminates artistic catalogs, beyond the classic editorial "support" for text publications provided by the CCE: it could form and promote according to the new forms of content distribution, a musical, theatrical, audiovisual and artisanal Industry, where they manage -as a Publishing House does in the international Music Industry- artistic and cultural products that generate market; this with a view to closing that link between the exercise of Copyright and Related Rights and Cultural Rights. It will be here where the CCE could plan its current and/or investment expenses, and through specialized professionals, manage a new model, eliminating bureaucracy or institutional image positioning expenses.

Outside of the existing GSCs in Ecuador, there are still several authors, composers, performers and producers who in practice dynamite the cultural scene and who, organized under one or more GSCs of the CCE, with a more equitable and inclusive statute in accordance with the Constitution and current laws would create conditions to generate cultural industries that dynamize the economy. Although the GSC of audio-visual products is better organized and contemplate regulations more in line with new technologies, they also leave aside emerging talents and young artists who are becoming professional, now that we find the University of the Arts, for example, or art faculties and schools in public universities that previously did not cover those academic spaces.

The digital micro-environment, with technical and technological capacity that allows quality and enjoyment to the user, will allow the formation of different networks to interact between author, reader, publisher, specialists, apps for the circulation of electronic books, etc.; an infinite range of new ways of making and understanding cultures will open up, besides giving value to the protagonists of the daily cultural scene, highlighting the true exercise of the Copyright and Related Rights, which is a human right such as the public communication of the work and its exploitation. This will recover the dignity of the author, artist, actor, creator and other members of the Ecuadorian cultural scene; the SGC can and should also manage various benefits and subsidies for its members, regarding health, retirement, as well as legal advice to avoid abusive contracts among others. The CCE could refer to and enhance -as its characteristics allow it- what Agadu does in Uruguay, a platform of the General Association of Authors of Uruguay since 1929, founded by the merger of various cultural institutions that, by different ways sought the defense of copyright (Agadu, 2021), besides being an informative website, it facilitates the future member the online entry, disseminates an updated cultural agenda with audiovisual offers, shows, literature, museums, dance, literature, museum, music, stand up, theater, in addition to courses and calls for incentives. And is displayed on its website, whose digital environment disseminates various works, events and cultural-artistic content, both virtual and face-to-face.

Within this analysis, it is important to highlight that in the COESCCI highlights Article 199 where audiovisual works cannot be distributed until previously celebrated with the author, artists, performers, rightful claimants or the corresponding SGC, the agreement that fully guarantees the payment of their rights, thus strengthening the formalization of the sector and respect for the artistic, creative and production work have done. This requirement should be extended to all creative artistic or cultural products.

Finally, as mentioned by Zambrano (2015), special attention should be paid to international cooperation and also to the citizen initiative within each country as indicators of compliance and guarantee of cultural rights for artists, producers and managers as well as for consumers and citizens in general.

Conclusion

It is in the national cultural system where cultural rights are managed. Without a solid, coherent, transparent and transparent system with social participation, neither the institutions in charge of protecting and being part of the management of cultural rights nor the collectives or cultural actors individually, will be able to fully manage and exercise cultural rights in Ecuador.

The use of digital platforms increased by the global pandemic, forces us to consider a post-pandemic scenario, as a central axis for the production, dissemination, distribution and consumption of artistic and cultural products. The good use of these platforms, the quality of the products, the use of existing and correlated legal tools, added to the ingenuity of the new generations, will allow the invention of cultural markets whose protagonist places the Ecuadorian House of Culture at the centre, changing the paternalistic model of current management that is not of investment but of expenditure, a situation that added to the cuts and the historical memory summarized in the first paragraphs, could end up disappearing the most important cultural institution of Ecuador.

It is necessary to close the existing gap between Cultural Rights and Copyright and Related Rights since their exercise and enjoyment depends on an effective system of culture; for them, it is important to respect and disseminate the exercise of intellectual property in order to activate and formalize dynamics between the supply and consumption of Ecuadorian cultural goods and products.

In order to avoid a possible concentration of markets as could occur in the national music scene, for example; the Organic Law of Regulation and Control of Market Power, in its Article 9 prohibits the abuse of market power, which occurs when one or more economic operators taking advantage of their market power, prevents, restricts or distorts competition, which aims to avoid a negative impact on economic efficiency and general welfare. The creation of other GSCs, in addition to the existing ones, will allow democratizing the management of Copyright and Related Rights in the function of the majorities with greater legal effectiveness (National Assembly of Ecuador, 2011).

It is suggested for future research to investigate in the analysis of the relationship and exercise of weighting that may exist between the Right to Work and the Copyright and Related Rights; because when approached from practice, it is possible to observe the use of the judicial channel for the action of the right to work -action before a flagrant infringement-; the same does not occur in the exercise of the Copyright and Related Rights. In short, the effect of a judicial claim on products that satisfies human needs of enjoyment or entertainment should be responded to with the same legitimacy as the right to work. Both are human rights.

The Casa de la Cultura Ecuatoriana, due to its leading role in the management of cultural rights, could generate a digital cultural market by linking the physical and specialized spaces of the CCE, to reach mass audiences through the development of technology. To do this, it should draw a roadmap focused on the quality of digital content to arouse the interest of consumers in audiences from different latitudes, increasingly consumerist of artistic, cultural and entertainment products via digital platforms, which will serve for the full enjoyment of cultural rights energizing creative economies of Ecuador, applying the Copyright and Related Rights, with legal and democratic modalities of collection through the creation of Collective Management Societies.

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