I

it is not so. The convention has wider ramifications for culture and cultural expressions. The crux of the debates over the convention was whether cultural goods should be treated like any other goods or whether they deserve a separate treatment given the importance of cultural goods which cannot be restricted to economic value alone. In one sense the convention has added impetus to the ongoing debates and measures on use of incentives and policies by national governments to protect and promote local and national audiovisual and information services, including film, television and music. But ironically

Economic and Political Weekly March 11, 2006

the convention has almost nothing to say on issues like concentration of media ownership.2

This convention should not be perceived as another avatar of New World Information and Communication Order (NWICO). The developing nations and EU, which were the major forces behind the convention, appear not interested in NWICO or in couching the cultural diversity issues in the terms of right to communication, or in any initiative like NWICO, now. Today the focus is more on asserting nations’ rights to frame policies to promote local and national cultural industries and to safeguard them from the onslaught of global and international cultural forces like Hollywood than on any new international order on Communication and Information.

Whether culture and cultural policies should be subordinated to global trade rules or whether the cultural exception holds well is the major issue that prompted France and Canada to mobilise support for such a convention right from the beginning. NWICO was an initiative that was meant to set right to North-South imbalance in information flows and ownership in media and culture. But this particular convention was negotiated with a different objective. Thus although the debates in the 1970s and 1980s over North-South imbalance in communication flows are valid today, perhaps more than then, in the discussions and negotiations on the convention the focus has shifted to another set of issues. This is understandable because even countries that favour economic globalisation and freer flow of investment and capital are reluctant to apply the same logic in matters relating to culture and national identity. In Europe this is more than a question of national identity and culture, although it is not an easy task to define either.

Origin and Principles

The origin of the convention can be traced to the Universal Declaration on Cultural Diversity adopted in November 2001. The declaration emphasises identity, diversity, and pluralism, and issues of cultural diversity as related to creativity, human rights and international solidarity. It should be pointed out that the declaration adopted after September 11, 2001 rejects the clash of cultures and civilisations thesis and lays emphasis on dialogue of civilisations and in a cultural diversity identified as essential for human kind. Both the declaration and the convention can be seen as a response to challenges posed by globalisation and have been preceded by various initiatives in UNESCO to respond to challenges posed by globalisation and increase in global flow of goods and services. The key question was whether cultural goods and services should be treated just like any other goods and services, and, if not, how to treat them in the context of globalisation.

The convention frames common rules and principles for cultural diversity at the global level and recognises the legitimacy of public policies in both protecting as well as promoting cultural diversity and affirms the sovereign right of parties (i e, states) in the cultural arena. According to Article 5, “The Parties reaffirm their sovereign right to formulate and implement and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation to achieve the purposes of this Convention”. Article 4 provides definitions to key terms like cultural diversity. Under Article 8 the convention permits parties to the convention to make appropriate measures for protecting and preserving cultural expressions in special situations where these expressions are at the risk of extinction, or under serious threat or need urgent safeguarding. While the convention’s text does mention an International Fund for Cultural Diversity and access to diverse cultural expressions from other countries in the world the convention is tilted more towards national measures for favouring or encouraging national/local cultural goods and services than providing positive incentives for global flow and exchange of expressions of cultural diversity. How effective will this be as a response to globalisation is an open question?

Cultural policies can be used to discriminate or serve as an excuse for protectionism. A nation can impose film quotas, provide subsidies for local/national content creators, give preference to local publishers over foreign publishers, extend tax breaks for film and TV productions and thus in so many ways discriminate against cultural goods and services produced elsewhere. Whether such policies will result in a better and enriching cultural goods and services is another question. It is possible that such measures can be combined with anti-trust or anti-monopoly policies so that the cultural sector is not dominated by few players and the diversity in cultural production, content and distribution is ensured. Thus a country can impose restrictions on ownership of TV channels, publications, theatre chains, etc, or can demand that foreign investment is restricted to certain percentage of the capital. Similarly, a nation can impose conditions on usage, of local/national content, for example it can restrict the use of foreignproduced TV shows and programmes to certain percentage of total programme in terms of hours of broadcast. By mandating that theatres should show films produced within the country for a minimum number of weeks in a year a nation can restrict the market for films produced elsewhere. Measures outlined above can be undertaken for the purpose of supporting cultural heritage also. France imposes quotas on the level of non-French content being broadcast in radio and television. It provides subsidies to French film, music, theatre and opera. Such measures are justified to protect local cultural industries from the onslaught of foreign productions, particularly films.

The question then is, are such measures permissible under WTO rules. We will return to this question in subsequent paragraphs. The relationship of this convention to other conventions and treaties is an important issue. Article 20 states: (i) parties recognise that they shall perform in good faith their obligations under this convention and all other treaties to which they are parties. Accordingly, without subordinating this convention to any other treaty: (a) they shall foster mutual supportiveness between this convention and the other treaties to which they are parties; and (b) when interpreting and applying the other treaties to which they are parties or when entering into other international obligations, parties shall take into account the relevant provisions of this convention. Moreover (ii) nothing in this convention shall be interpreted as modifying rights and obligations of the parties under any other treaties to which they are parties.

Whether the convention’s rules override the rules under WTO or commitments made therein is not an easy question; Article 20 is thus, ambiguous. Whether this convention is about trade or about protecting cultural diversity remains the crux of the issue.

Economic and Political Weekly March 11, 2006

In fact the US argued that this convention exceeded the mandate of the UNESCO and it was about trade. According to Richard Martin, co-head of the US delegation “(the Convention’s text) is deeply flawed and fundamentally incompatible with (the agency’s) obligation to promote free flow of ideas by word and image…(The Convention) could impair rights and obligations under international agreements and could adversely impact prospects for successful completion of the Doha Development Round negotiations”.3

The US state department argues that the definitions in the convention are very vague. It expressed strong apprehensions that the provisions of the convention could be used to take sweeping measures based on illdefined cultural objectives. Another issue of contention was the relationship between the convention and other international agreements. The official view was that the convention could be used as a tool for imposing protectionist trade measures in the name of protecting culture.4 The US proposed many amendments but they were not acceptable to majority of the countries.

It is not surprising that the government of France was elated over the adoption of the convention. In an interview the French minister stated as below,

Q – The Americans feel they are being attacked... Minister – There must be no hypocrisy here. The reality is domination and thus a risk of uniformity: American films account for 85 per cent of global cinema boxoffice sales. The objective is not just to maintain the greatest diversity, but also to aspire to fairness. For there to be exchange, the other has to exist. Q – For a long time France has fought alone. Minister – She’s no longer Europe’s “black sheep”. The 25 are united. Diversity, the semantic development of the cultural exception, is being widely reinforced.5

He had also stated that in the US only one per cent of movies shown were from other countries. Thus France and US have totally opposing approaches towards cultural goods and services. This is not a paradox. According to one commentator,

The United States’ official positions on world culture markets run from the view that culture is merely a commodity that should flow across borders like soap and toilet paper to the assertion that free trade supports cultural diversity through infusions of foreign revenue. An unofficial perspective is less about markets and individual freedom and more about our position as the last superpower on earth. From this perspective, our national security depends to a large extent on expanding our supremacy in world culture [Moran 2004].

As the convention provides ammunition for defenders of national cultural policies to protect and promote national cultural expressions, one can expect that countries like France will use the convention to further their objectives and the European Commission will also use it to promote internal market policies that preserve and promote cultural diversity (e g, its “Televisions Without Borders” Directive). Not all countries take the view that the convention is about trade. For example, the Indian position is that it is about culture. But to what extent countries are willing to use the convention is difficult to judge now. Apart from commitments under WTO, countries do enter into bilateral and regional trade agreements, and many countries have bilateral agreements with US or EU or with both. It has been pointed out that the US has been “luring” developing governments to sign bilateral trade agreements that curtail their rights to preserve and support local/national cultural industries and information services in sectors like film, television and music.6

According to Mattelart, “The State Department in Washington and the Motion Picture Association, which represents US media giants, have pressured countries as Chile, South Korea, Morocco and former members of the Soviet bloc in negotiations on bilateral trade agreements. In exchange for compensation in other sectors, they have encouraged these countries to waive their right to independent policies on film production” (http://mondediplo.com/2005/ 11/15unesco).

The screen quota system introduced in 1967 in South Korea mandates that theatres show Korean films for a minimum period in a year, i e, for 146 days in a year. This is done to protect the local film industry from competition elsewhere, particularly Hollywood. In its negotiations on bilateral trade and investment agreements, the US is demanding that the mandatory number of days should be reduced. But it seems that for the present there will not be any change in the quota system.7 But in countries where not many films are produced locally every year such quotas may not be a barrier to the US film industry, e g, Indonesia. Not many countries have film industries that can compete with the Hollywood, in the absence of such policies.

But policies in the cultural sector alone will not be sufficient to minimise the market dominance of Hollywood. Countries may have to use anti-monopoly laws or measures prohibiting monopoly and oligopoly to curb the market dominance of Hollywood in both production and distribution.

According to Germann (2005), “In most countries of the world, India being a remarkable exception, film distribution is largely dominated by Hollywood Majors’ oligopoly. Governments that want to seriously take care of cultural diversity in cinema are well advised to closely scrutinise the Majors’ behaviour within their national markets, and, if necessary, adapt their competition laws accordingly”.

Germann suggests that countries can explore the “essential facilities doctrine” under American law as a part of competition law regime. To what extent countries are willing to use the convention depends on many factors, including their willingness or refusal to concede to the demands of the US in bilateral trade agreements and the commitments made in GATS, particularly under audiovisual services. Of course there are other issues like permitting FDI in cultural industries and media ownership.8 There is no need to think that in bilateral or regional trade agreements, there is no scope for what is called as “cultural exception”. In fact there is provision for such an exception in NAFTA but the interpretation of this exception had been controversial.9

Thus the arrival of the convention will add more complexity to these issues. But if countries start to use the convention as a shield against the pressures to scrap or modify policies that favour local cultural industries from big players from abroad then the objective of the convention would have been fulfilled to some extent.

Regarding the relationship between WTO rules and the convention there is no consensus. While there is a fear that WTO need not consider the convention as binding and can go by WTO rules, these fears seem exaggerated. In case a country uses the convention to circumvent or violate its commitments made under GATS then it is most likely that WTO will rule that GATS is more binding than the convention. But when signatories to the convention are also the members of WTO, the convention cannot be dismissed so easily or disregarded as irrelevant.

Economic and Political Weekly March 11, 2006

According to Mohammed Lotfi M’rini, if properly used the convention can be used to weaken the power of GATS at WTO. He points out that as the convention’s dispute settlement has no real juridical standing, WTO legal framework will be the framework for dispute settlement on ‘trade questions on cultural goods’.10 Another view is that there is no conflict between the two and both are valid in their own domains and there is no need to consider one as superior to or superseding the other. This view is echoed by European Commission.

But a more nuanced position is possible. Under this position, in case of dispute the convention will be recognised as relevant to the dispute and the protection of cultural diversity can be taken as a concern of the nations.11

No Conflict with WTO

This position seems reasonable as it recognises that diversity in global lawmaking is possible and the WTO dispute settlement need not be antagonistic to other global conventions and treaties. However given the divergent views on the relationship between WTO agreements and multilateral environmental agreements (MEAs) and between Trade-Related Intellectual Property Rights (TRIPS) and Convention on Biological Diversity (CBD), it is too early to come to a definite conclusion.

The dominant players in the cultural exception debate have been countries like France and Canada which are economically powerful and also have a significant cultural industries but many developing nations, other than India, Korea and some other nations, are neither economically so strong nor have a vibrant and economically significant cultural industry that can compete with global cultural forces. Hence they may not be able to fully utilise the rules of the convention to protect and promote cultural diversity. On the other hand, within nations there are issues like linguistic diversity, recognition and application of cultural rights of the minorities, and indigenous communities. It has been pointed out that when nations stress importance on a single language as lingua franca, many other languages spoken by the marginalised communities face threats for survival or become extinct.

As cultural diversity is closely linked to linguistic diversity on the one hand, and to bio-cultural diversity on the other, national policies that promote homogeneity in culture and language will result in less cultural and linguistic diversity. But the protection of linguistic diversity is not given the importance it deserves and the term “cultural diversity” can be narrowly interpreted to promote and protect a single culture or language from outside forces. Thus the nexus between global and national, and the local and national, is important. In the eagerness to protect national culture from globalisation, nations may not give much importance to protect the local or regional from national. The declaration of one language as the national language often results in forcing communities that speak or use different languages to give more importance to national language than to their mother tongues. When combined with importance to another global language like English or French or Spanish this will result is a condition where native languages unable to meet the challenge of the national and global language will wither away or become moribund. Unfortunately such issues are not given the importance they deserve in debates on cultural diversity. For example in the debates over the convention the focus has been more on globalisation vs national cultural sector, Hollywood vs cinema in France, Canada, South Korea, etc, than on issues like indigenous people and various diversities such as cultural and linguistic.

Thus there is need to understand that while the convention will definitely help nations in framing cultural policies to counter the threats from globalisation, it may not be very helpful in protecting and promoting cultural diversity within nations, unless the national governments and regional governments give equal importance to that also. Hence the convention is a good beginning but in what direction the journey proceeds depends on the direction in which steps are taken. There is every possibility that many countries may use the convention for a very limited purpose. Thus one can be cautiously optimistic about the impact of the convention while recognising its limitations and the complexity of the issues involved.

EPW

Email: krsriniv@gmail.com