According to Pedro Edgar Rizo Peña, in an article titled “Notes for the demystification of #Decree349”What the “activists against 349“ have failed to analyze (perhaps due to a lack of legal culture or a failure to read and interpret it as a whole) is that this Decree is promulgated on the basis of the provisions for the regulation of self-employment in the country… In other words, that first element eliminates the basis that it is against artists and their creative expressions.”.
I completely disagree with the author's statement. Decree No. 349, in its first "Whereas" clause, states that it updates Decree No. 226 (but in its second final provision, it repeals it), even though the latter expressly acknowledges its application to violations of current regulations and provisions regarding the provision of artistic services in public places or facilities, labor matters, and cultural, artistic, and literary policy. It makes no mention of self-employment, nor does Decree 349 explicitly address it.
Nor does it mention the Labor Code, as its predecessor did with Law No. 49/83, which was repealed by Law 116/2014 (current labor code), which authorizes the Minister of Culture (Art. 76) to establish the procedure and the authorities empowered to assess the suitability and professionalism for the performance of an artistic position, as well as the form of remuneration of artists.
If it goes against artists and their creative expressions
If Decree 349 (#) does not apply to artists, what does the infraction contained in subsection e) of section 1 of Article 2 mean? I quote: “In the provision of artistic services, the following constitute infractions… providing artistic services without being authorized to perform artistic work in an artistic position or occupation.”.
Following the entry into force of the new Labor Code, the Ministry of Culture issued Resolution No. 45 of June 16, 2014, "Regulations for the Evaluation System of Workers in the Arts." This resolution established a Technical Artistic Council or evaluation tribunal to assess the quality of work, the qualitative development of individual or collective aptitude and skill, and to grant or revoke professional status to artists (graduates of artistic education, general education, or amateurs) based on artistic expressions, genres, specialties, or artistic position.
The Ministry of Culture or the Cuban Institute of Radio and Television authorizes institutions to produce and market artistic works and services. These entities are the only ones authorized to establish working relationships with artists or artistic groups, based on their professional performance, and represent them. They must request authorization when they need to hire an artist without prior evaluation for a specific performance or work. They are prohibited from establishing working relationships with artists who have lost their professional standing, those who are not graduates of the formal arts education system (they may be re-evaluated after one year). Any artistic group that is found to have lost its professional standing will be dissolved.
It is not legally related to self-employment regulations
Finally, Decree 349 expands its scope from “public places or institutions” to “state or non-state public places or facilities.” Unfettered discretion and legal uncertainty increase when the State fails to define what it means by “non-state public places or non-state public facilities.”.
It also broadens the scope of its application. Article 226 was limited to individuals acting on behalf of a state, private, or mixed entity. Self-employed workers (part of the non-state sector) were not included because they are not considered business owners and therefore there is no legal basis for the state to classify them as an entity (see the glossary of terms in the draft constitution).
They are authorized to carry out an economic activity, which most of them do from their own homes. It is true that they restructure and adapt these properties for their businesses (hair salons, bakeries, restaurants, etc.), but legally they remain private residences. The state does not recognize their legal status or the commercial value of the property. There is no reason to consider the places where self-employed workers operate as "non-state public places or non-state public facilities," much less to consider them "legal entities.".