FREQUENTLY ASKED QUESTIONS

THE RELATIONSHIP BETWEEN A CONVENTION ON
CULTURAL CONTENTS AND ARTISTIC EXPRESSION
AND INTERNATIONAL TRADE

1. Why does the INCP support a Convention on cultural contents and artistic expressions?

While we recognize that globalization offers new opportunities for enhanced exchanges of cultural expressions, concerns have been raised about the potential threats to the diversity of these expressions. Against this backdrop, the international community has decided to negotiate a Convention on cultural contents and artistic expressions.

In view of the particular characteristics of markets in the creation, production, distribution, exhibition and broadcasting of cultural content, specific cultural policies are often required to promote cultural diversity. These characteristics create important challenges to diversity, such as the distortions resulting from high levels of concentration in industries involved in the production and distribution of content; the differing levels of access to economies of scale because of language or size of population; the lack of capacity in developing countries to commercially develop and promote their creative talent. These and many other dynamics that are particular to cultural markets require financial, institutional and regulatory measures to ensure the availability of diverse domestic and foreign cultural content.

It is now widely accepted that cultural diversity is part of the common heritage of humanity and that the production and availability of a diversity of cultural goods and services from domestic and foreign sources brings positive externalities, that is, social and cultural benefits beyond the purely commercial value of those goods and services. For example, it is for this reason that UNESCO's Universal Declaration on Cultural Diversity recognizes that cultural goods and services should not be treated simply as mere commodities. Ministers participating in INCP discussions have considered the ways in which cultural diversity contributes to social cohesion, to the vitality of democracy, and to the identity of peoples, all essential components of social and economic development.

Governments, therefore, should foster the availability of diverse cultural content. An effective international framework would ensure that the rights of governments and obligations under international agreements accommodate and support their ability to take advantage of the benefits of cultural diversity domestically.

2. What should be the objectives of this Convention?

The Convention on cultural contents and artistic expressions would re-affirm the right of governments to take measures to preserve and promote cultural diversity, provide a basis for enhanced international cooperation in exercising those rights and enhance the transparency of cultural policies, their objectives and their development.

The Convention would also serve as a point of reference for other international organizations, including those dealing with international trade negotiations. It would highlight the policy space governments' need to preserve and promote cultural diversity through the elaboration of rights and obligations with respect to the creation, production, distribution, communication, broadcasting, exhibition and sale of cultural contents while informing and shaping the future elaboration of other areas of international law, including in the area of trade agreements.

3. What aspects of cultural diversity should be covered by this Convention?

The Universal Declaration on Cultural Diversity, adopted by UNESCO in November 2001, covers all aspects of cultural diversity. However, in its Preliminary Study on the Technical and Legal Aspects Relating to the Desirability of a Standard-Setting Instrument on Cultural Diversity (166 EX/28) dated March 12, 2003, the UNESCO Secretariat recalls that a number of aspects of cultural diversity are already subject to international regulation. This document recommended that the new Convention focus on the protection of the diversity of cultural contents and artistic expressions "reflected in cultural industries," (which corresponds essentially to articles 8 to 11 of the Universal Declaration on Cultural diversity) and that "appear to be particularly threatened by globalization."

Accordingly, the mandate that the UNESCO General Conference gave to the Director General concerned one core aspect of cultural diversity: the diversity of cultural contents and artistic expressions. This essential dimension of cultural diversity covers the diversity of creation, production, distribution, and broadcasting of cultural goods and services, whatever its medium or form, existing or to be invented. Therefore, the scope of this Convention should cover policies and measures with respect to cultural content and artistic expressions

4. Would this Convention serve to justify protectionist measures?

The logic of a Convention on cultural diversity is not to reduce international trade of cultural goods and services, but rather to equip governments with an international framework to ensure that a diversity of cultural goods and services, both domestic and foreign, are created and available to their populations. Cultural diversity, by definition, assumes that there is access to diverse cultural content, both domestic and foreign.

Governments would be assured that they retained access to the policy tools necessary to promote the production and availability of domestic content to their own citizenry. Cooperation under the Convention could also help governments make the best use of those tools, and, in addressing the particular needs of developing countries, improve the capacity of those countries to make use of them. The resulting enhancement of production and distribution would therefore add to the diversity of cultural content available both domestically and internationally.

Our work should be guided by the principle of balance between the right to promote the production and availability of domestic cultural content, and the obligation to remain open to cultural content from other countries. The Convention would, in this way, provide a framework for the policies that are needed to preserve and promote cultural diversity, and not a carte blanche for the introduction of any kind of measure with any kind of motive.

5. What should be the relationship between this Convention and the international trade regulations?

The proposed Convention will be developed from a cultural perspective and take its place alongside other international agreements and treaties, including those related to international trade. The purpose of such a Convention is therefore not to call into question the existing international legal order, nor to create a hierarchy between agreements. Rather its objective is to ensure that each field of international law can deal with issues pertaining to cultural policy within the scope of their respective mandates. Therefore, a proper articulation between the UNESCO Convention and other treaties must be defined.

For example, the UNESCO Convention would not remove the cultural or audiovisual services sectors from the scope of the GATS. The parties to the Convention would remain free of any legal constraint on making commitments that they judged appropriate in all service sectors, including cultural services.

However, from a cultural perspective, making binding market access or national treatment commitments, either in the context of multilateral or bilateral free trade agreements, could result in the loss of the ability to maintain or introduce the kinds of measures required to address the particular dynamics of cultural markets. The result could therefore be a reduction rather than an increase in the diversity of the goods and services available for international exchange. This is particularly the case for developing countries which may not at present have extensive cultural policies but which, through making binding market access commitments, could lose the ability to introduce them in the future once they have the capacity to do so.

However, from a cultural perspective, making binding market access or national treatment commitments, either in the context of multilateral or bilateral free trade agreements, could result in the loss of the ability to maintain or introduce the kinds of measures required to address the particular dynamics of cultural markets. The result could therefore be a reduction rather than an increase in the diversity of the goods and services available for international exchange. This is particularly the case for developing countries which may not at present have extensive cultural policies but which, through making binding market access commitments, could lose the ability to introduce them in the future once they have the capacity to do so.

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