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Reconciling Trade and Culture: A Global Law Perspective

2011; Routledge; Volume: 41; Issue: 2 Linguagem: Inglês

10.1080/10632921.2011.573447

1930-7799

Mira Burri,

International Arbitration and Investment Law

Abstract This article provides an overview of the most essential issues in the trade and culture discourse from a global law perspective. It looks into the intensified disconnect between trade and culture and exposes its flaws and the considerable drawbacks that it brings with it. It is argued that these drawbacks become especially pronounced in the digital media environment, which has strongly affected both the conditions of trade with cultural products and services and cultural diversity in local and global contexts. In this modified setting, there could have been a number of feasible “trade and culture” solutions—i.e., regulatory designs that while enhancing trade liberalization are also conducive to cultural policy. Yet, the realization of any of these options becomes chimerical as the line between trade and culture matters is drawn in a clear and resolute manner. KEYWORDS: cultural diversityculturedigital mediainternational lawtradeUNESCOWTO Notes 1. 148 countries voted for the adoption of the Convention, while four countries (Australia, Honduras, Nicaragua, and Liberia) abstained. Only two countries, the U.S. and Israel, opposed. As of September 28, 2010, 115 countries, as well as the European Community, had ratified the UNESCO Convention (see http://portal.unesco.org/la/convention.asp?KO=31038&language=E (accessed 18 March 2011). 2. Rachael Craufurd Smith, The UNESCO Convention on the Protection and Promotion of Cultural Expressions: Building a New World Information and Communication Order? 1 International Journal of Communication 24, 28–29 (2007). 3. Christoph Beat Graber, The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO. 9 J. Int’l Econ. L. 553, 564–65 (2006). 4. See Frederick Scott Galt, The Life, Death, and Rebirth of the “Cultural Exception” in the Multilateral Trading System: An Evolutionary Analysis of Cultural Protection and Intervention in the Face of American Pop Culture's Hegemony. Wash. U. Global Stud. L. Rev. 909 (2004). 5. Canadian Cultural Industries Sectoral Advisory Group on International Trade (SAGIT), New Strategies for Culture and Trade: Canadian Culture in a Global World, 1999, at Executive Summary. 6. Articles 7–19 UNESCO Convention. The only provision of binding nature (Article 16) resembles the WTO's enabling clause and relates to the preferential treatment for developing countries, whereby developed countries must facilitate cultural exchanges with developing countries by granting preferential treatment to cultural workers, as well as to cultural goods (see GATT, Decision of 28 November 1979 (L/4903), Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries). 7. Craufurd Smith, supra note 2, at 39; Article 9(a) UNESCO Convention. 8. Article 6(2)(a)-(h) UNESCO Convention. For an overview of the domestic cultural policy measures, see Mary E. Footer and Christoph Beat Graber, Trade Liberalisation and Cultural Policy. 3 J. Int’l Econ. L. 115, 122–26 (2000). 9. Craufurd Smith, supra note 2, at 40. In this sense, it also diverges from the contemporary theory of regulation seeking the slightest possible interference (see e.g. Richard R. Nelson (ed.), The Limits of Market Organisation (2005). 10. Craufurd Smith, supra note 2, at 40–41. 11. Article 4(1) defines “cultural diversity” as referring “to the manifold ways in which the cultures of groups and societies find expression.” 12. See e.g. Craufurd Smith, supra note 2; Jan Wouters and Bart De Meester, The UNESCO Convention on Cultural Diversity and WTO Law: A Case Study in Fragmentation of International Law. 41 J. World Trade 205; Christopher M. Bruner, Culture, Sovereignty, and Hollywood: UNESCO and the Future of Trade in Cultural Products. 40 Int’l L. & Pol. 351 (2008); Mira Burri-Nenova, Trade versus Culture in the Digital Environment: An Old Conflict in Need of a New Definition. 12 J. Int’l Econ. L. 1 (2009). 13. Elsa Stamatopoulou, Cultural Rights in International Law (2007). 14. Craufurd Smith, supra note 2, at 28 and 37. 15. Recitals 8, 13, and 15 of the preamble, Articles 2(3) and 7(1)(a) UNESCO Convention. 16. The Convention also in this sense ignores recent developments in international law, such as the United Nations Declaration on the Rights of Indigenous Peoples, adopted with General Assembly Resolution 61/295, 13 September 2007. 17. Craufurd Smith, supra note 2, at 26 and 28. 18. Recital 17 UNESCO Convention's preamble recognizes “the importance of intellectual property rights in sustaining those involved in cultural creativity.” IPRs had a more prominent role during the negotiations of the Convention. See Laurence R. Helfer, Towards a Human Rights Framework for Intellectual Property. 40 U.C. Davis L. Rev. 971, 1004–6 (2007). 19. As the U.S. Constitution (Article I, Section 8, para 8) beautifully puts it: “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” 20. Raymond Shih Ray Ku, Promoting Diverse Cultural Expression: Lessons from the US Copyright Wars. 2 AJWH 369, 376 (2007). 21. Tomer Broude, Conflict and Complementarity in Trade, Cultural Diversity and Intellectual Property Rights. 2 AJWH 346, 355–56 (2007). 22. Craufurd Smith, supra note 2, at 53–54. 23. Craufurd Smith, supra note 2, at 29–30. 24. The Multilateral Trade Regime: Which Way Forward?, The Report of the First Warwick Commission, at 26 (2007). 25. For some classic thoughts, see Paul Krugman, Competitiveness: A Dangerous Obsession. 73 Foreign Affairs 28 (1994). 26. For a critique of the cultural industries and the homogeneity of content, see Christoph Beat Graber, Handel und Kultur im Audiovisionsrecht der WTO, at 18 (2003). 27. See e.g. Anthony Giddens, Runaway World: How Globalisation Is Reshaping Our Lives (2002). With regard to culture, Giddens (at xxiv) holds that “Western, and more specifically American, cultural influence is visible everywhere—in films, television, popular music and other areas. Cultural standardisation is an intrinsic part of this process. Yet all this is relatively superficial cultural veneer; a more profound effect of globalisation is to produce greater local cultural diversity, not homogeneity. The United States itself is the very opposite of a cultural monolith, comprising as it does a dazzling variety of different ethnic and cultural groups. Because of its ‘push-down’ effect […] globalisation tends to promote a renewal of local cultural identities. Sometimes these reflect wider world patterns, but very often they self-consciously diverge from them.” Tyler Cowen also insists that global monopolies and imported technologies have led to promoting local creativity by generating new markets for innovative, high-quality artistic productions. See Tyler Cowen, Creative Destruction: How Globalization Is Changing the World's Cultures, at 146 (2002). 28. Bruner, supra note 12, at 432. 29. Tom O’Regan and Ben Goldsmith, Making Cultural Policy: Meeting Cultural Objectives in a Digital Environment. 7 Television & New Media 68, 88 (2006). 30. Madhavi Sunder, Cultural Dissent. 54 Stan. L. Rev. 495, 498 (2001). 31. Yudhishtir Raj Isar, Cultural Diversity. 23 Theory, Cult. & Soc. 371, 372 (2006), referring to Nick Stevenson, Cultural Citizenship: Cosmopolitan Questions, at 62 (2003). 32. Bruner, supra note 12. 33. Bonnie J. K. Richardson, Vice-President of Trade and Federal Affairs, Motion Picture Association of America, Impediments to Digital Trade: Hearing before the Subcommission on Commerce, Trade and Consumer Protection of the House Committee on Energy and Commerce, 107th Congress 17, 2001. 34. See Graber, supra note 3, at 570. 35. In the WTO context, audiovisual services encompass motion picture and video tape production and distribution services, motion picture projection service, radio and television services, radio and television transmission services, sound recording and others. See WTO, Services Sectoral Classification List, WTO Doc.MTN.GNS/W/120, 10 July 1991, at 2(D). 36. Martin Roy, Audiovisual Services in the Doha Round: Dialogue de Sourds, The Sequel? 6 J. Investment & Trade 923 (2005). 37. Id. at 931–36. 38. The most prominent reference is C. Edwin Baker, Media, Markets, and Democracy (2001). 39. Wouters and De Meester, supra note 12, at 217. 40. Galt, supra note 4, 917–19. See also generally Richard A. Posner, The Economic Analysis of Law (7th ed. 2007). 41. There are economic models that show that trade restrictions enhance welfare. Such a cultural trade model involving two countries, the U.S. and France, in which a French tariff on film imports can be optimal, is valid, however, with the critical assumptions that Hollywood can produce exportable films but the French industry cannot; nationals of one country cannot invest or participate as professionals in the other's film industry, and there is no price discrimination. See Patrick François and Tanguy van Ypersele, On the Protection of Cultural Goods. 56 J. Int’l Econ. 359 (2002). 42. See e.g. Mira Burri-Nenova, The Long Tail of the Rainbow Serpent: New Technologies and the Protection and Promotion of Traditional Cultural Expressions, in Intellectual Property and Traditional Cultural Expressions in a Digital Environment 205–36 (Christoph Beat Graber and Mira Burri-Nenova eds., 2008). 43. David Weinberger, Everything Is Miscellaneous (2007). 44. Chris Anderson, The Long Tail: Why the Future of Business Is Selling Less of More (2006). See also Erik Brynjolfsson, Yu Hu, and Michael D. Smith, From Niches to Riches: The Anatomy of the Long Tail. 47 Sloan Mgmt. Rev. 67 (2006). 45. This may also be true for offering products in diverse languages. While most websites are still in English, it is a fact that as the Internet becomes ubiquitous people around the world prefer to read their news, stories, and local gossip in their own language. The free online encyclopedia Wikipedia, for instance, while having the greatest number of articles in English (3,587,947), exists also in 278 other languages. See http://meta.wikimedia.org/wiki/List_of_Wikipedias (accessed 18 March 2011). 46. Germann argues that this specificity of cultural goods and services is the main one that commands intervention. Christophe Germann, Culture in Times of Cholera: A Vision for a New Legal Framework Promoting Cultural Diversity. 6 era—Forum 109, 116 (2005). 47. Also called wisdom of the crowds. See James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, and Nations (2003). 48. Brynjolfsson et al., supra note 44. 49. Erik Brynjolfsson, Yu Hu, and Michael D. Smith, Consumer Surplus in the Digital Economy: Estimating the Value of Increased Product Variety at Online Booksellers, MIT Sloan Working Paper No 4305(2003). 50. Edwin Horlings, Chris Marsden, Constantijn van Oranje, and Maarten Botterman, Contribution to Impact Assessment of the Revision of the Television without Frontiers Directive, at 66 (2005). Report prepared for the European Commission. 51. A 2007 OECD Report summarizes these effects stating that “[t]he Internet as a new creative outlet has altered the economics of information production and led to the democratization of media production and changes in the nature of communication and social relationships […]. Changes in the way users produce, distribute, access and re-use information, knowledge and entertainment potentially give rise to increased user autonomy, increased participation and increased diversity.” See OECD, Participative Web: User-Created Content, DSTI/ICCP/IE(2006)7/FINAL, 12 April 2007, at 5. 52. Ellen P. Goodman, Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets. Berkeley Tech. L. J. 1389, 1395–99 (2004). For case studies, see also News and Information as Digital Media Come of Age, Report of the Berkman Center for Internet and Society at Harvard University, 18 December 2008. 53. For a specific analysis of UCC in virtual worlds, see Mira Burri-Nenova, User Created Content in Virtual Worlds and Cultural Diversity, in Governance of Digital Game Environments and Cultural Diversity 74–112 (Christoph Beat Graber and Mira Burri-Nenova, eds., 2009). 54. For a critical opinion, see Andrew Keen, The Cult of the Amateur: How Today's Internet Is Killing Our Culture (2007). 55. See Netherlands Council for Culture, From ICT to E-Culture: Advisory Report on the Digitalisation of Culture and the Implications for Cultural Policy, submitted to the State Secretary for Education, Culture and Science, 2003; Tom O’Regan and Ben Goldsmith, Emerging Global Ecologies of Production, in The New Media Book 92–105 (Dan Harries, ed., 2008). 56. Here one should however acknowledge the possibilities of filtering information on the Internet, mostly done for political reasons. See Ronald J. Deibert, John G. Palfrey, Rafal Rohozinski, and Jonathan Zittrain, Access Denied: The Practice and Policy of Global Internet Filtering (2007). 57. Baker, supra note 38, at 121. 58. Such as, for instance, the EC TV quotas for European content, as we have argued elsewhere. See Mira Burri-Nenova, The New Audiovisual Media Services Directive: Television without Frontiers, Television without Cultural Diversity. 44 C. M. L. Rev. 1689. 59. In the sense of supporting a political regime as in China. See Henry Gao, The Mighty Pen, the Almighty Dollar and the Holy Hammer and Sickle: Examination of the Conflict between Trade Liberalization and Domestic Cultural Policy with Special Regard to the Recent Dispute between the United States and China. 2 AJWH 313. 60. Marshall Van Alstyne and Erik Brynjolfsson, Global Village or Cyber-Balkans? Modeling and Measuring the Integration of Electronic Communities. 51 Mgmt. Sci. 851 (2004). 61. For some suggestions, see Mira Burri-Nenova, The Changing Environment of Audiovisual Media: New Technologies, New Patterns of Consumer/Business Behaviour and Their Implications for Audiovisual Media Regulation. medialex 171 (2007). 62. Wouters and De Meester, supra note 12, at 218. 63. In the context of UNESCO, it was only in the 1990s that the organization took a concrete interest in protecting cultural diversity from the alleged negative effects of international trade and economic globalization. Key steps in this process were the publication of the seminal report “Our Creative Diversity” by the World Commission on Culture and Development in 1995 and the 1998 Stockholm Conference on Cultural Policies for Development. See Bruner, supra note 12, at 378–83. 64. John Trumpbour, Selling Hollywood to the World: US and European Struggles for Mastery of the Global Film Industry, 1920–1950 (2007). 65. Article XI GATT. 66. Article IV GATT covers “internal quantitative regulations relating to exposed cinematograph films,” which must take the form of “screen quotas” conforming to certain requirements (Article IV, paras (a) to (d)). Such quotas “may require the exhibition of cinematograph films of national origin during a specified minimum proportion of the total screen time actually utilized” and may “reserve a minimum proportion of screen time for films of a specified origin other than that of the Member imposing such screen quotas.” 67. Graber, supra note 3, at 555 and 569. 68. See Sandrine Cahn and Daniel Schimmel, The Cultural Exception: Does It Exist in GATT and GATS Frameworks? How Does It Affect or Is It Affected by the Agreement on TRIPS? 15 Cardozo Arts & Ent. L. J. 281, 287–89 (1997). 69. See Christoph Beat Graber, Audio-visual Policy: The Stumbling Block of Trade Liberalisation, in The WTO and Global Convergence in Telecommunications and Audiovisual Services 165–214 (Damien Geradin and David Luff eds. 2004); Roy, supra note 36. 70. Galt, supra note 4, at 914; Cahn and Schimmel, supra note 68, at 291–301. 71. See Part IV GATS. Article XIX therein states: ‘In pursuance of the objectives of this Agreement, Members shall enter into successive rounds of negotiations, beginning not later than five years from the date of entry into force of the WTO Agreement and periodically thereafter, with a view to achieving a progressively higher level of liberalization’. 72. The GATS Annex on Article II Exemptions states that, ‘[i]n principle, such exemptions [to MFN] should not exceed a period of 10 years. In any event, they shall be subject to negotiation in subsequent trade liberalizing rounds’. The exemptions made should have thus theoretically expired in 2005. 73. WTO Panel Report, Canada–Certain Measures Concerning Periodicals (Canada–Periodicals), WT/DS31/R, adopted 14 March 1997; WTO Appellate Body Report, Canada–Certain Measures Concerning Periodicals (Canada–Periodicals), WT/DS31/AB/R, adopted 30 June 1997. 74. Canada-US Free Trade Agreement, 22 December 1987–2 January 1988, 27 ILM 281 (1988). 75. See Article XX(b) GATT and Article XIV(b) GATS with regard to measures ‘necessary to protect human, animal or plant life or health’, and Article XX(g) GATT with regard to measures ‚relating to the conservation of exhaustible natural resources’. 76. See WTO Appellate Body Report, United States–Import Prohibition of Certain Shrimp and Shrimp Products (US–Shrimp), WT/DS58/AB/R, adopted 12 October 1998, at para 17. 77. Graber, supra note 3, at 572. 78. Chi Carmody, When “Cultural Identity Was Not an Issue”: Thinking about Canada–Certain Measures Concerning Periodicals. 30 Law & Pol’y Int’l Bus. 231 (1999). 79. For an account of the different positions, see Roy, supra note 36, at 926–28. 80. Ivan Bernier, Cultural Goods and Services in International Trade Law, in The Culture/Trade Quandary 147 (Dennis Browne ed. 1998). 81. See Christoph Beat Graber, WTO: A Threat to European Film?, in Proceedings of the 5th Conference “European Culture” 865–78 (Enrique Banus ed. 2000). Graber suggests that such art house films could be differentiated, instead of using otherwise subjective qualitative assessment, by applying a quantitative criterion for film budgets of not more than 5 million USD. 82. Tania Voon, A New Approach to Audiovisual Products in the WTO: Rebalancing GATT and GATS. 14 UCLA Ent. L. Rev. 1, 27 (2007). 83. For instance, Brazil, Japan and India have all ratified the Convention but remain equally willing to engage in further liberalization of the audiovisual sector. 84. UN Provisional Central Product Classification (CPC), UN Statistical Papers, Series M, No 77, Ver.1.1, E.91.XVII.7, 1991. 85. Roy, supra note 36, at 947. 86. Sacha Wunsch-Vincent, The WTO, the Internet and Trade in Digital Products, at 71 (2006). 87. Pierre Sauvé, Completing the GATS Framework: Addressing Uruguay Round Leftovers. 3 Aussenwirtschaft 301, 302 (2002). 88. While the GATS contains no specific rules on subsidies, these are not excluded from its scope. As “measures by Members affecting trade in services” within the meaning of Article I:1, subsidies are fully covered by the provisions of the GATS. A number of GATS provisions restrict governments’ ability to provide services subsidies or to offer a remedy to those Members harmed by their negative effects. See Pietro Poretti, Waiting for Godot: Subsidy Disciplines in Services Trade, in GATS and the Regulation of International Trade in Services 466–48 (Marion Panizzon et al. eds 2008). 89. Sauvé, supra note 87, at 325. 90. Bernard Hoekman, Toward a More Balanced and Comprehensive Services Agreement, in The WTO after Seattle 119, 129 (Jeffrey J. Schott ed. 2000). 91. WTO, Communication from the United States, Audiovisual and Related Services, S/CSS/W/21, 18 December 2000, at para 10(iii). The U.S. has already accepted some leeway for subsidies in its FTAs with Singapore and Australia. 92. Poretti, supra note 88, at 486. 93. Voon, supra note 82, at 20–24. 94. Id. at 20. 95. WTO, Agreement on Subsidies and Countervailing Measures, at Article 1.1(a)(i) and (ii). 96. Voon, supra note 82, at 22. 97. Philip Marsden, A Competition Policy for the WTO (2003). 98. WTO, Singapore Ministerial Declaration, Conf. Doc. WT/MIN(96)/DEC/W, 13 December 1996. The Singapore Declaration mandated the establishment of “a working group to study issues raised by Members relating to the interaction between trade and competition policy, including anti-competitive practices, in order to identify any areas that may merit further consideration in the WTO framework.” 99. WTO, Doha Work Programme: Decision Adopted by the General Council on 1 August 2004, WT/L/579, 2 August 2004, at para (g). 100. The Warwick Commission, supra note 24, at 9 and ch. 1. 101. For a critique of the cultural exception doctrine, see Galt, supra note 4, at 915–22. 102. Article 1(g) UNESCO Convention. 103. Galt, supra note 4, at 933. 104. J. P. Singh, Culture or Commerce? A Comparative Assessment of International Interactions and Developing Countries at UNESCO, WTO, and Beyond. 8 Int’l Studies Perspectives 36, 48 (2007). 105. The British Broadcasting Company (BBC) has already experimented in this field. See Ofcom, “A New Approach to Public Service Content in the Digital Media Age: The Potential Role of Public Service Publisher” (Ofcom Discussion Paper, January 24, 2007); Jamie Cowling and Damien Tambini eds., From Public Service Broadcasting to Public Service Communications (2004). 106. Galt, supra note 4, at 935, meaning the United Kingdom as the new dominant voice within the EU. 107. Articles 14, 16, and 18 UNESCO Convention. Many developing countries ratified the Convention in the hope that they would profit from the International Fund for Cultural Diversity, created under the Convention (Article 18). 108. Singh, supra note 104, at 42.