September 2011
Debates 2011: four debates, four studies. This month "Intellectual Property, a universal value". Prepare the debates and discover exclusive interviews.

With in exclusivity for the fourth edition of the Forum:

Presentation of the 2011 study:Intellectual Property, a universal value

Why is intellectual property a universal value? How is it possible to promote intellectual property in the following decade, beyond the agreements of principle, and to reach which goals? Who will artists and creators entrust with the management of their rights in the following years? Can the different players agree on a new distribution of the value? Under which conditions does intellectual property’s protection encourage innovation?
The Ersnt &  Young study realized in exclusivity for the Forum d'Avignon 2011 not only has a pedagogic purpose but also tries to highlight some answers to these questions.

Aims of the study
1.    Presenting an international benchmark on the stakes of intellectual property based on the G20 countries, and especially regarding literary and artistic property. The study lists laws and regulations in terms of copyrights and presents convergences or divergences between the different countries. It is clear that the legal framework is widely accepted, due to the impulse of the WTO and of the WIPO. The difference rather is in the way of implementing the laws, depending on the choices made by the countries and on the level of economic and technological development. 
Nota Bene: This benchmark will be completed, with country sheets set up by Ernst & Young offices of all around the world: Germany, Saudi Arabia, Australia, Brazil, Canada, China, South Korea, the United States of America, France, India, Italy, Japan, Mexico, the United Kingdom, Russia, and Turkey.  
2.    Supporting authors, protecting the investors, promoting innovation. Intellectual property covers many rights, including copyrights, neighboring rights, moral rights, patents, and the brands’ right. It has many objectives depending on the different rights: protecting and encouraging investment, promoting implementation of technologies, warranting the integrity of an artwork, allowing the creators to live thanks to their work, allowing an always greater number of individuals to have access to a real diversity of creation, stimulating R&D and innovation. Crossing one another, these different objectives raise questions, more and more numerous with the digital development: should the protection of an artwork’s integrity be adjusted to make fragments of a work available and useful? Does the effectiveness of the intellectual property rights’ protection support innovation? Will brands and copyright come closer?
3.    Comprehending contractual and technical stakes, the role of the different players. To the questions raised by the rapprochement of intellectual property’s different rights, such as literary and artistic property with patent rights, are overlaid those related to the techniques’ evolution and players’ behavior. Can the latter imagine new collaboration forms to guarantee at the same time the respect of the intellectual property, and the creativity which is inherent with sharing and accessing to contents? To what extend will the increase of cloud computing offers redefine intellectual property rights’ management? What kind of security issues will they raise? Are contractual solutions like the Creative Commons - authorizing sharing and offering protection tracks among which some are compatible with the moral right, without entering in heavy industrial processes -, be a realistic improver to the laws on copyright? How is it possible to handle the increasing flows, the audience’s growing expectations regarding a global access without rethinking the offers?

The study will be directed by the International Media & Entertainment Network, with the help of the Ernst & Young Continental Europe Law network and the Ernst & Young Knowledge Center. The research work will be completed by interviews of artists, academic lawyers and economists, politicians, and business representatives.
The E&Y Global Technology Technology and Telecom Centers will also participate in giving their view on the impact of new forms of hosting, storing and sharing content.

Learning more about the 2011 studies of the Forum d'Avignon
Learning more about the 2011 edition of the Forum d'Avignon


The Forum d’Avignon, in partnership with Ernst & Young leads interviews to enhance the study "Intellectual Property:  a universal value" that will be published in November 2011.

Copyright from an economic point of view by Françoise Benhamou

F. BenhamouFrançoise BENHAMOU is an economist and professor at University Paris 13. She is also teaching in many foreign universities and at SciencesPo. She published notably Droit d’auteur et copyright (Author’s right and Copyright) with Joëlle Farchy.
Economists see copyright as the introduction of a monopoly in the marketing of a work, in favor of the author or the financier. It restricts the circulation of the work but also encourages creation thanks to the possibility of paying the author and his financier. Thus, copyright creates a tension between this monopoly, meant to ensure a return on investment (ROI), and the possibility of distributing the work. The duration of copyright is limited in order to promote the diffusion of works, after an eventual redemption.
In this respect, at the time of Internet, the present duration of protection (author’s life plus 70 years after his death) seems an eternity.
The copyright’s history shows that this period keeps being extended. Then, the central question is what the optimal duration of copyright is. From an economic point of view, there is no strong argument in favor of extending it. On the occasion of the Sonny Bono Act, in the United States of America, which extended the duration of protection, a memoir written by a panel of economists - including several Nobel Prize winners - refuted the need for an extension of this period, showing that it would have no additional incentive effect. In 1998, the US Congress passed under that name the law on the extension of the copyright duration, which enables works to be protected up to 70 years after the death of the author and up to 95 years after the first publication, if the copyright owner is a moral person.

Tendencies and stakes of Intellectual Property by Lorena Boix Alonso

LBALorena Boix Alonso is Deputy Head of Cabinet of  Neelie Kroes.
Is there a parallel between the development of internet services in a country and the regulation on IP protection?
Real-time entertainment traffic continues to grow steadily and today is, both in North America and Europe, the largest percentage of internet traffic in fixed networks. Immediately after comes P2P.  In we talk about trends, studies say that  by 2012 Internet video will account for over 50 percent of consumer Internet traffic In 2015, 1 million minutes of video content will cross the network every second.
These services require for their provision content which is often protected by copyright. It is therefore evident that the way copyright is regulated, in terms of both licensing and enforcement has an influence in the availability of internet services. A copyright system which makes the acquisition of licenses burdensome, will increase the cost for providing a service and diminish the incentives of providers to offer legal content. On the other hand, a copyright system which is not sufficiently protective will diminish the trust of content right holders in the internet and deter them from providing licenses. This is why, in order to foster legal content services, it is necessary to act on both fronts. On the one hand, it is necessary to ensure that the legal framework enables content providers to obtain licenses as easily as possible. On the other hand, copyright law has to be seriously enforced to give confidence to right holders.
This is why the two angles need to be tackled together. Let's indeed not forget that the objective of any enforcement measure is to protect what is legal.
Other questions asked to Lorena Boix Alonso: Is enforcement of IPRs less efficient on the internet than enforcement of criminal offecences (racism, antSeitism, etc.)? Is there a lack of political awareness or willingness?Do you think that new rules are needed to organize the links between IT providers and right owners in order to improve the protection of IPRs?How can public policy reinforce IP protection by creating a strong desire for action on the part of governments and the courts?What changes in copyright law in Europe do you suggest, especially regarding the matter of the private copy which is an outdated notion in the digital era? Do you have insights on regulatory trends in this area?
How could regulation or other elements contribute to meeting both citizens/users’ expectations of free or cheap Access to contents and IPR’s holders’ expectations to a fair remuneration?What are the next steps to improve cultural preservation in the digital and physical fields?
© European Union, 2011
The content of this written interview does not reflect the official opinion of the European Union. Responsibility for the information and views expressed therein lies entirely with the author.
Reproduction is authorised provided the source is acknowledged.
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Intellectual property, a recent concept by Olivier Bomsel

O. BomselOlivier BOMSEL is an economist, professor of industrial economy at MINES ParisTech and director of the ParisTech chair « economy of the media and brands».
It should be noted first that the economy often comes after law. Law answers in a concrete and pragmatic way to temporal and political imperatives. Eeconomy observes the functioning of institutions, so it starts from positive law and tries to interpret it and analyze what it allows in terms of organization of the society. (Reading of legal and economic institutions of property.) The right of property appears to be an institution that allows the coordination of the society.
If property is an ancient concept, it began to be interpreted by economists in the 1960s, as a structuring institution (Demsetz, Coase). As for the category of intellectual property, it was unthinkable in the early 20th century: for example Schumpeter never refers to the concept of intellectual property even if he made innovation the motor of capitalism. Intellectual property designates the exclusiveness of the use of information and its commercial utilization. There are three types of umbrella institutions which protects creation and innovation: copyright, trademark and patent.

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The MarignyTheatre by Nicolas Dussart

N. DussartNicolas Dussart is Deputy Director General, Théâtre Marigny

Can you describe your profession and in what way questions concerning intellectual property influence your institution?
Backed by its Director, Pierre Lescure, the Théâtre Marigny has been engaged in an open and ambitious policy in the past few months.  The quality of the programme, the diversity of formats and genres, events, circulation of the public, and modern installations have turned this historical place into a platform for exchanges, creations and emotions that are at the forefront of cultural innovation.

With the emergence of new practices and cultural expectations linked to the development of technologies, the challenges of intellectual property have become crucial.  At first glance, one might believe that the constraints imposed by a performance, with its “fleeting” temporality and the necessarily “living” presence of actors, could preserve the theatrical space of the contemporary debate on copyright.  But the opposite is true.  More than ever, the theatre must adapt itself to new modes of consumption.  What is a theatre in the age of the net?  The Théâtre Marigny has deliberately chosen the future: captation and retransmission, publications and smartphone applications, digital “channel” for debates with artists and the audience… These innovations obviously require an effort to adapt and pay particular attention to the mechanisms of intellectual property.

Other questions asked to Nicolas Dussart : What in your opinion are the 2-3-4 current challenges of intellectual property?What links together artists and labels, or institutions and labels, or creators and labels?
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Intellectual Property on the international agenda by Laurence Franceschini
L. Franceschini
Laurence Franceschini is General Manager of the media and cultural industries of the French Minister of Culture and Communication and member of the Board of the Forum d'Avignon.

According to you, what are the major issues related to intellectual property? What are the undertaken actions?
Intellectual property is one of the main themes of the cultural Summit that Frédéric Mitterrand will chair the 17th and 18th of November in Avignon. The summit was wanted by the French President of the Republic alongside of the G8 summit, after which the Heads of State and Government of the countries have unanimously stressed the importance and topicality of the fundamental principles of author right in the digital era.

On the occasion of the Cultural Summit, the Ministry of Culture and Communication will release a study about several major issues of remuneration for the creation in the digital age - because digital is not only changing the means of disseminating culture, it also changes intellectual property,  becoming a new lever for creating and by offering new opportunities for rights management.

Other questions asked to Laurence Franceschini: In which countries do you see changes (public or private initiatives, legislation, regulations, case law, ...) that could inspire France? Conversely, what are the French initiatives that arouse other countries’ interest? And how are they taken into account by these countries? 
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Law enforcement stakes by Pierre-Yves Gautier, law professor

PY GautierPierre-Yves Gautier explains that the main problem for IP protection is not the evolution of law. The copyright, which describes what an immaterial property in the creative field is, exists since a long time. The existing law has to be enforced, which is not well done in all the countries.

Pierre-Yves Gautier considers that the development of Internet has for consequence a limitation of the intellectual property: consumers behave differently and they want to have creative works for free or as cheaper as possible. Besides, technological innovations are promoting this trend by facilitating free access. The revenues are consequently redirected to the IP providers and not the authors, a situation that cannot be a long term perspective.

The existing law on IP protection is therefore inefficient, because there is no application of penalties. For example, the movie Joyeux Noel has been made available on DailyMotion without authorization. After a notification to DailyMotion, the film was still available. In February 2011, the French Supreme Court decided that DailyMotion was not guilty, by referring to the e-business law (LCEN) and not the IP law. A law suit is in that case too expensive for the authors and their producers because they don’t know if they will win. There is a paradox between the IP law and others law, especially the e-business. This paradox relies on the will of the governments to encourage e-business development, the spread of culture, instead of guaranteeing the efficiency of their right to the rights owners. Besides, it is very difficult to get the efficiency of a decision in other countries.

If new rules have to be imagined, we will need a global framework for agreement between IP providers and right owners in order to organize the revenue sharing and the protection of IP. The technological answer, with DRM, will also be inefficient, even if DRM are useful to manage the rights.

Another option is to develop the education on IP and the need of its protection in order to maintain the creation. But education has limits and the possibility of a free access will continue to satisfy the Internet users, even if it penalizes the right owners. The “clic” can be a proof of content consumption in order to manage the payment and give back to the authors a decent revenue.
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How is it possible to enforce copyright in the digital environment? by Bernard Miyet

B. MiyetMr. Bernard Miyet is the Chairman of the Board of the SACEM. He has been interviewed by members of the Forum d’Avignon about his analysis on challenges arising from the digital economy and the recent technical revolutions for the protection of creative works.

Legal and political considerations
In Mr. Miyet’s opinion, it has been and remains very difficult to find a satisfactory solution to the issue of the enforcement of copyrights in the digital environment.
To explain this point, Mr. Miyet pointed out that, for the first time in history, users such as telcos and internet services providers (ISP) benefit from intellectual property creations because of the indirect economic effects deriving from the exploitation of the creations without being compelled to remunerate their rightholders in return. He also disagrees with the former CEO of France Telecom Didier Lombard statement that the telecom companies should be considered as the heirs of the postal services which don’t have access to the content they deliver (a postman does not open the envelop).
For Mr. Miyet, this cannot be a valid argument as long as telcos and ISP are able to determine which content (music or videofiles) they offer access to and take profit from. The solution would be to reexamine the issue of the financial and legal responsibility of such providers.
Mr. Miyet also points out that the purpose followed by the SACEM is not to prevent the dissemination of creative works but, on the contrary, to promote it effectively, in the best interest of the authors and consequently of creation in general. That is the reason why according to Mr. Miyet, it is necessary to find a way to make the telecom companies and ISP aware of their responsibilities in a context where the sale of hard copy media such as CD and DVD lost 50% in four years.
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Author's rights X.0 by Thaima Samman, lawyer

T. SammanWhat is - really - new about author's right?
Without making the exegesis of intimate relationships between technology and copyright since the spread of printing in the XVth century, marking the beginning of mass publication and the need to protect authors’ rights, questions are More and more raised as cultural works are spread over the Internet. Technology forces copyright to adapt itself because of the challenges it creates. The issue is not new: the young Mozart, then aged 14, during an audition of the Allegri’s Miserere, which was jealously guarded by the Church, only to be played within the Sistine Chapel on special occasions, managed to reproduce from memory the Miserere’s nine-voice score, thus allowing its circulation and resulting in the ultimate lifting of the papal prohibition a few years later. Sometimes considered a pirate before his time, Mozart managed to lift the exclusivity the Church claimed for this work.  This type of geniuses thinly spread, the greatest challenges faced by copyright today come from technology.
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DEBATES 2011 – Intellectual property - Apple, a patent to prevent from filming concerts
1Apple filed a patent in June regarding a new generation camera for mobile devices, a technology that would prevent users from  recording concerts illegally. The system could be used by music and film industries to enforce the protection during shows and in movie theaters.

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Who is the society of audiovisual authors?
2The Society of Audiovisual  Authors  represents 25 European collective management societies of audiovisual authors, that is to say more than 118,000 authors and filmmakers in 17 countries.  A White Paper has been published in February on audiovisual copyright and remuneration  in Europe, quoted by the European Commission, the World Intellectual Property Organization and UNESCO.
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DEBATES 2011 - Intellectual property - Artists take over their rights
New challenge for the music industry: thanks to a clause in their contract, artists can reclaim ownership of their records.
Indeed, the copyright law was revised in 1976 in the United States, saying that artists can, by appealing “termination rights,” claim ownership of their recordings. Thus they would have the right to take over the control of their works after 35 years of exploitation by their record company, if the request is made two years in advance.

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DEBATES 2011 - Intellectual property - Graduated response in Great Britain, the USA and New Zealand5
Following the publication of the Hargreaves’ report, the British government has clarified its position. First, format shifting from CDs and DVDs to digital format for private use will be allowed without any compensation for content producers. In many countries, especially France, Spain and Germany, supports allowing private copying are subject to a tax. A part of the price is paid back to copyright collecting societies.
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Always Further - Intellectual Property and Growth: new approach of the copyright in UK
5The 18th of May, Ian Hargreaves, chairman of digital economy at the Cardiff School of Journalism, published his study « Digital opportunity, a review of Intellectual Property and Growth » commissioned by David Cameron. Hargreaves exposes clearly the deficiencies of the current system and proposes new measures for an effective intellectual property that protects and engenders the creation. Its main conclusion is that laws should be adapt edto the digital development and answer particularly this question:  how is it possible to protect the interests of copyright owners without preventing entrepreneurs from exploiting opportunities online?
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Always further - intellectual property: PIPA law
6A Large-scale operation in the United States to limit piracy
 Approved last month, the PIPA bill (IP Protect Act - Preventing Online Real Threats to Economic Creativity and Theft of Intellectual Property Act of 2011.), also known as US Senate Bill S.968, aims at fighting against the 'pirate' websites, which provide illegal access to copyrighted works. This bill will deny access and linking to these sites - especially those registered outside the United States. Thus, it gives unprecedented powers of repression to the Federal Department.
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Always Further - Germany and copyright, a new law?
7In May, the German minister of state to the Federal Chancellor and federal government commissioner for culture and the media, Bernd Neumann announced copyright law reforms. He stressed that this would be in favor of authors and creators, not users. It contrasts with the project of  global licence proposing a flat tax for the culture that had been advanced by the Green politics recently, and rejected.
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DEBATE 2011 - Intellectual Property - Agreement between Baidu and Majors
8Ending a long legal conflict, Baidu, the Chinese search engine which controls 76% of the domestic market, has signed an agreement on July the 19th with three majors of the music industry: Universal Music, Warner Music and Sony Music, represented by the joint venture One-Stop China. The partnership aims at fighting against piracy by allowing Baidu to make available a legal offer on its website.
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Always Further - A new chapter for Google and the French publishers
The publisher Hachette Livre and Google have submitted on July the 28th 2011 the conditions of their agreement for the digitization of works commercially unavailable. Almost 50,000 print books, which rights are held by the French publishing group, would be affected . Three principles guide this agreement to respect the rights of authors and publishers. Arnaud Nourry, CEO of Hachette Livre  said that "it is a framework to start all over again, with new bases: fair, balanced and respectful of our rights".
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Always Further - The British Library opens its doors to Google: two centuries of documents will be soon online
Tunisie40 million pages from one of the biggest collections of historic books, pamphlets and periodicals are to be made available on the Internet. Indeed, the British Library announced last week a program to digitize 250,000 books as part of an agreement with Google Books.
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Always Further - National Library of France looking for partners to digitize.
PassionThe National Library of France (BNF) and the French Ministry of Culture and Communication launched last Wednesday a call for private partnership to digitize and develop the collections of the BNF. The BNF continues its program started 10 years ago – especially since the agreement with Frederic Mitterrand, minister of Culture and Communication to digitize 500,000 books unobtainable in bookstores.
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Always Further - Adopt an e-book, save a manuscript !
ElektraIn India, the project « adopt an e-book », concerned about conservation and preservation of ancient Indian literature, has been launched lately. The online bookstore BookGanga, initiator of the project, embarks on the digitization of old manuscripts, asking consumers for a small contribution.

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Always Further - The social Netbook
ThakaraWhile Facebook already proposed to create your visual bookshelf to list and recommend books to all your friends, the numbers of social networks dedicated to books are increasing. In France, Babelio exist since 2007, providing extracts, reviews, quotes, top 10 for each genre, etc. and everyone can share his reading. With more than 700 000 visits a month, Babelio is supported by different publishers as Albin Michel, Gallimard or Grasset: the more active members can be invited to comment new books in previews.
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Always Further - The future of digital culture is in copyright
Digital technologies and the Internet question the efficiency of intellectual property rights. With a promise of an universal access to culture (democratization of knowledge and instant copy of cultural works at a lower cost), digital can lead, in the same time, to a destruction process of creative works and therefore a weakening of economic models of cultural industries.
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Always further - Orbooks reinvents publishing with an innovative economic model
SéoulRefusing the traditional codes of the publishing sector, the publishers of “orbooks” implemented an innovative model emphasizing the place and role of the reader. Favoring the selection of books (new as well as established writers) to mass distribution, they promote design, quality and an original of their books (Internet, videos, articles…).
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Always further: cultural et creative sectors in China and European Union - KEA study
FranceA KEA study prepared for the European Commission aims at proposing a working document mapping the cultural and creative sectors of the EU and Chine in the framework of the project UE-China for the protection of intellectual property (IPR2).
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Did you know? Ebook piracy costs $3 billions to the American editors
FranceWhat are the real losses engendered by piracy in the book industry? How do the main actors of the market react to this phenomenon? This article, published in march 2010, confronts the reality of piracy to its effects of the book industry, presenting figures related to the cost of piracy on American book houses.
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Did you know? 65% of the US Internet users have paid to download or access to online cultural contents

FranceThe American research center Pew recently published in december 2010 a study related to the consumption habits of Americans on the Internet. It can be learnt that 65 % of the Internet users have already paid to download or access to online cultural contents.

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Did you know? More than 50% have downloaded a song from the internet for free in the last three months
The Midem published a study with the Institute Nielsen, in december 2010, related to the music consumption habits of the Internet users. For the study elaborated in november 2010, more than 50% have downloaded a song from the internet for free in the last three months (not only illegally).
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Did you know? Streaming vs. download, figures of the online consumption
FranceAccording to the REC barometer of GFK institute about the French’s digital uses (a survey prepared with 1000 French Internet users aged 15 to 65), music streaming represents now 51% of listening on the web, more than the download which corresponds to 49%. The most popular sites are video platforms (YouTube, Dailymotion) and live listening (Deezer, Spotify), and then Web radio.
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Find the videos of for the Forum d'Avignon 2010: on the theme "culture and urban development": an interview with Philippe Augier (Mayor of Deauville), an interview with Didier Fusillier (director of Lille 2004 and MAC Créteil) ; on the "digital cinema", an interview with Ignasi Guardans (former director of the Institute of Cinema and Audiovisual Arts, Spain) about the challenges and opportunities in Europe, an interview with Mahesh Bhatt (writer, director and producer, Vishesh Film) about India, and an interview with Philippe Reynaert ; an interview with J. Allen Scott  about the emergence of a "cognitive and cultural capitalism "  ; an interview with Arjun Appadurai, (anthropologist of globalization) on "Culture, economy and society" ; an interview  with Ineum consulting about the study " strategies for sustainable employment and urban development planning?"and all the interviews collected during the entire event.
Created at the initiative of the institute ECCE (European Centre for Creative Economy) is a web TV broadcasted only on the Internet. With its videos and its blog (including the themes of art, the economy or education), allows to follow projects in the Ruhr area and the European partner cities, including the ones that demonstrate factors of innovation, as well as the "economic power" of culture. Currently, these are 20 authors from 10 countries participating in the project, investigating culture and the transformation of these cities. European portal for cultural and creative industries, the highlights the importance of creative industries in the cultural and social evolution.

    Next newsletters - Prepare the debates with accurate witnesses :
    • Debates 2011: Cultural referencing and prescription (early October)
    • Debates 2011: Culture and connected screens  (mid October)
    • Debates 2011: Intellectual Property, artists' points of view (early November)

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