Trade versus culture in the digital environment: An old conflict in need of a new definition

Journal of International Economic Law

Volumn 12, Issue 1, 2009, Pages 17-62

  Burri Nenova, Mira ^a  

^a UNIVERSITY OF BERN   (Switzerland)

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[No Author keywords available]

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EID: 65449173227     PISSN: 13693034     EISSN: 14643758     Source Type: Journal    
DOI: 10.1093/jiel/jgn038     Document Type: Article

References (366)

1. See Lisa L Garrett 'Commerce versus Culture: The Battle between the United States and the European Union over Audiovisual Trade Policies' (1994) 19 North Carolina Journal of International Law and Commercial Regulation 553;
2. Jonas M Grant "Jurassic" Trade Dispute: The Exclusion of the Audiovisual Sector from GATT' (1995) 70 Indiana Law Journal 1333;
3. Mary E Footer and Christoph Beat Graber 'Trade Liberalisation and Cultural Policy' (2000) 3 JIEL 115;
4. Bruno de Witte 'Trade in Culture: International Legal Regimes and EU Constitutional Values' in Gráinne de Búrca and Joanne Scott (eds) The EU and the WTO - Legal and Constitutional Issues (Hart Oxford 2003) 237-255;
5. Patrick A Messerlin et al The Audiovisual Services Sector in the GATS Negotiations (American Enterprise Institute Press Washington DC 2004);
6. Ivan Bernier 'Trade and Culture' in Patrick FJ Macrory et al (eds) The World Trade Organization: Legal, Economic and Political Analysis (Springer New York 2005) 747-793. 00 148 countries voted for the adoption of the Convention, while four countries (Australia, Honduras, Nicaragua and Liberia) abstained. Only two countries, the US and Israel, opposed. The Convention has subsequently undergone a process of swift ratification (the fastest ever in UNESCO) and as of 2 September 2008, 89 countries had ratified it (Available at http://portal.unesco.org/la/convention.asp?KO=31038&language=E, accessed 1 October 2008).
7. See Ivan Bernier 'A UNESCO International Convention on Cultural Diversity' in Christoph Beat Graber et al (eds) Free Trade versus Cultural Diversity: WTO Negotiations in the Field of Audiovisual Services (Schulthess Zurich 2004) 65-76;
8. Tania Voon 'UNESCO and the WTO: A Clash of Cultures?' (2006) 55 International and Comparative Law Quarterly 635;
9. Tania Voon Cultural Products and the World Trade Organization (Cambridge University Press Cambridge 2007) 173-216;
10. Americo Beviglia-Zampetti 'WTO Rules in the Audio-Visual Sector' in Paulo Guerrieri et al Cultural Diversity and International Economic Integration: The Global Governance of the Audio-Visual Sector (Edward Elgar Cheltenham UK 2005) 261-284.
11. See e.g. Christoph Beat Graber 'The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO' (2006) 9 JIEL 553.
12. The WTO was established in April 1994 as part of the final act embodying the results of the Uruguay Round of multilateral trade negotiations and building upon the General Agreement on Tariffs and Trade (GATT) 1947.
13. See Agreement Establishing the World Trade Organization with Understanding on the Rules and Procedures Governing the Settlement of Disputes and Trade Policy Review Mechanism, done at Marrakesh, 15 April 1994, TS 57(1996) Cm 3277; (1994) 33 ILM 15, entered into force 1 January 1995.
14. See, among others, Andreas Fischer-Lescano and Gunther Teubner 'Regime-Collisions: the Vain Search for Legal Unity in the Fragmentation of Global Law' (2004) 25 Michigan JIL 999;
15. Gerhard Hafner 'Pros and Cons Ensuing from Fragmentation of International Law' (2004) 25 Michigan JIL 849;
16. Martti Koskenniemi and Päivi Leino 'Fragmentation of International Law? Postmodern Anxieties' (2002) 15 Leiden JIL 553;
17. Joost Pauwelyn 'Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands' (2004) 25 Michigan JIL 903;
18. Pemmaraju S Rao 'Multiple International Judicial Forums: A Reflection of the Growing Strength of International Law or its Fragmentation' (2004) 25 Michigan JIL 929;
19. Kalypso Nicolaïdis and Joyce L Tong 'Diversity or Cacophony? The Continuing Debate over New Sources of International Law' (2004) 25 Michigan JIL 1349. 7 Jan Wouters and Bart De Meester 'The UNESCO Convention on Cultural Diversity and WTO Law: A Case Study in Fragmentation of International Law' (2008) 41 Journal of Trade Law 205.
20. Michael Hahn 'A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law' (2006) 9 JIEL 515; Graber, above n 4;
21. Rachael Craufurd Smith 'The UNESCO Convention on the Protection and Promotion of Cultural Expressions: Building a New World Information and Communication Order?' (2007) 1 International Journal of Communication 24; Wouters and De Meester, above n 7;
22. Christoph Beat Graber, 'Substantive Rights and Obligations under the UNESCO Convention on Cultural Diversity', NCCR Trade Regulation Working Paper No 08 (2008), as well as the contributions to Nina Obuljen and Joost Smiers (eds) UNESCO's Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Making It Work (Institute for International Relations Zagreb 2006).
23. Article 1(g) of the UNESCO Convention.
24. Article 4(4) of the UNESCO Convention.
25. Article 4(3) of the UNESCO Convention. On the concept of culture underlying the UNESCO Convention, see Graber, above n 8, at 2-4.
26. Article 4(2) of the UNESCO Convention.
27. Graber, above n 4, at 564-565.
28. Article 5(1) of the UNESCO Convention.
29. Craufurd Smith, above n 8, at 28-29.
30. See UNESCO, Agreement on the Importation of Educational, Scientific and Cultural Materials, done at Florence, 17 June 1950 ('Florence Agreement'). The Agreement was updated with the Nairobi Protocol (done at Nairobi, 26 November 1976), which extended the free circulation principles to other cultural goods, particularly those using the technologies developed at that time, such as audiovisual materials. The Florence Agreement and Nairobi Protocol seek to remove customs charges on the import of certain educational, scientific and cultural materials and prohibit the imposition of discriminatory internal charges. More recent acts are the Council of Europe Declaration on Cultural Diversity, done at Strasbourg, 7 December 2000 and the UNESCO Universal Declaration on Cultural Diversity, done at Paris, 2 November 2001.
31. Such as UNESCO, Convention Concerning the Protection of the World Cultural and Natural Heritage, done at Paris, 16 November 1972; UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage, done at Paris, 17 October 2003, and Council of Europe, European Landscape Convention, European Treaty Series No 176, done at Florence, 20 October 2000.
32. Universal Declaration of Human Rights, UN General Assembly Resolution 217A(III), U.N. Doc. A/810, 10 December 1948.
33. International Covenant on Economic, Social and Cultural Rights, concluded 16 December 1966, entered into force 3 January 1976, 993 U.N.T.S. 3.
34. International Covenant on Civil and Political Rights, concluded 16 December 1966, entered into force 23 March 1976, 999 U.N.T.S. 171, in particular Article 27.
35. We only discuss these points of critique since they have been widely acknowledged by the first wave of scholarly work done during the drafting and after the adoption of the UNESCO Convention. See above n 8.
36. See also Keith Acheson and Christopher Maule 'Convention on Cultural Diversity' (2004) 28 Journal of Cultural Economics 243, and the following Comments by Frederick Van der Ploeg, Françoise Benhamou and Plelio Iapadre.
37. Articles 5-19 of the UNESCO Convention.
38. For a well-structured overview of the Convention's rights and obligations, see Graber, above n 8, at 5-6.
39. Articles 7-11 of the UNESCO Convention.
40. Articles 12-19 of the UNESCO Convention, excluding Article 16, which is of binding nature.
41. Graber, above n 8, at 6.
42. Graber, ibid, at 8, footnote 59. Another provision that qualifies as an obligation relates to the cooperation in providing assistance, in particular to developing countries, in situations of serious threat to cultural expressions (Article 17 of the UNESCO Convention).
43. See GATT, Decision of 28 November 1979 (174903), Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries ('Enabling Clause').
44. See also Bernard Hoekman 'More Favorable Treatment of Developing Countries: Ways Forward' in Richard Newfarmer (ed) Trade, Doha, and Development: Window into the Issues (World Bank Washington DC 2006) 213-221;
45. Seung Wha Chang 'WTO for Trade and Development Post-Doha' (2007) 10 JIEL 553.
46. Article 16 of the UNESCO Convention.
47. Emphasis added.
48. Acheson and Maule note in this regard: 'Enforcement of an International Agreement ultimately depends on the ability to exclude members from the gains that it generates because of the absence of effective third-party adjudication. A member that is assessed a penalty will accept an assessed sanction rather than invite expulsion if the discounted value of future benefits is sufficiently high. The creative challenge in a rules-based international agreement is to craft rules that generate significant gains for each member and to establish a fair dispute settlement mechanism (DSM) and related "punishments" that deter non-compliance. See Acheson and Maule, above n 21, at 244.
49. Craufurd Smith, above n 8, at 39 and Article 9(a) of the UNESCO Convention.
50. Pursuant to the 'Television without Frontiers' Directive, Member States are obliged to report every two years on the application of Articles 4 and 5 of the Directive, regulating respectively the inclusion of European works and independent productions in television programmes [see Council Directive 89/552/EEC of 3 October 1989 on the on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities ('Television without Frontiers'), OJ 1989 L 298/23, at Article 4(3)]. Under the new Audiovisual Media Services Directive (introduced through amendment by Directive 2007/65/EC), this obligation remains. An additional duty is foreseen for on-demand audiovisual media services. Pursuant to Article 3(i) AVMS, Member States must report to the Commission no later than 19 December 2011 and every four years thereafter on the promotion of the production of and access to European works.
51. Craufurd Smith, above n 8, at 37-38.
52. See Article 6(2)(a)-(h) of the UNESCO Convention.
53. Hélène Ruiz Fabri 'Reflections on Possible Future Legal Implications of the Convention' in Obuljen and Smiers, above n 8, 73-87, at 80.
54. For an overview of the domestic cultural policy measures, see Footer and Graber, above n 1, at 122-126.
55. Article 6(2)(a) of the UNESCO Convention.
56. Article 6(2)(h) of the UNESCO Convention.
57. Craufurd Smith, above n 8, at 40.
58. See e.g. Richard R Nelson (ed) The Limits of Market Organization (Russell Sage New York 2005);
59. Anthony I Ogus Regulation: Legal Form and Economic Theory (Clarendon Press Oxford 1994);
60. Johan den Hertog 'General Theories of Regulation' in Boudewijn Bouckaert and Gerrit De Geest (eds) Encyclopedia of Law and Economics (Edward Elgar Cheltenham UK 2000) 223-270.
61. For the application of this theory in the jurisprudence of the WTO, see Panagiotis Delimatsis 'Determining the Necessity of Domestic Regulations in Services' (2008) 19 European JIL 365.
62. The US noted in this regard: 'This instrument remains too flawed, too open to misinterpretation, and too prone to abuse for us to support'. See 'Explanation of Vote of the United States on the Convention on the Protection and Promotion of the Diversity of Cultural Expressions', Statement by Louise V Oliver, US Ambassador to UNESCO, Distributed by the Bureau of International Information Programs, US Department of State, available at http://usinfo.state. gov (accessed 1 October 2008).
63. See above n 8.
64. See below section III. C.
65. Craufurd Smith, above n 8, at 40-41.
66. Article 3 of the UNESCO Convention defines the scope of its application stating: 'This Convention shall apply to the policies and measures adopted by the Parties related to the protection and promotion of the diversity of cultural expressions'.
67. Principle of sovereignty: 'States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to adopt measures and policies to protect and promote the diversity of cultural expressions within their territory'. See also Craufurd Smith, above n 8, at 37.
68. In the narrow sense we mean here, above all, Article 27 CCPR and Article 15(1)(c) CESCR.
69. See Asbjø rn Eide 'Cultural Rights as Individual Human Rights' in Asbjørn Eide et al (eds) Economic, Social and Cultural Rights (2nd edn Kluwer Law International The Hague 2001) 289-301;
70. Elsa Stamatopoulou Cultural Rights in International Law (Brill Leiden 2007).
71. Articles 2(1), 2(3) and 7 of the UNESCO Convention. On the relationship between the Convention and human rights, see Graber, above n 4, at 560-563.
72. Craufurd Smith, above n 8, at 28 and 37.
73. Article 5 of the UNESCO Convention: 'Cultural Rights as an enabling environment for Cultural diversity' States: 'Cultural Rights are an integral part of Human Rights, which are universal, indivisible and interdependent. The flourishing of creative diversity requires the full implementation of cultural rights as defined in Article 27 of the Universal Declaration of Human Rights and in Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights. All persons have therefore the right to express themselves and to create and disseminate their work in the language of their choice, and particularly in their mother tongue; all persons are entitled to quality education and training that fully respect their cultural identity; and all persons have the right to participate in the cultural life of their choice and conduct their own cultural practices, subject to respect for human rights and fundamental freedoms'.
74. Recitals 8, 13 and 15 of the preamble, Articles 2(3) and 7(1)(a) of the UNESCO Convention.
75. See Nicole Aylwin and Rosemary J Coombe 'Cultural Pluralism Protects Traditional Knowledge' (2006). Available at http://www.wacc.org.uk/wacc/ publications/media-development/2006-3/cultural-pluralism-protects-traditional- knowledge (accessed 1 October 2008).
76. Craufurd Smith notes in this regard: 'For Developing Countries or minority groups the Convention offers nothing by way of concrete entitlement. Given that cultural diversity may be threatened as much, if not more, by forces operating internally within states, the underlying pre-occupation of the Convention with Inter-State relations and International Trade represents a clear limitation. Although Article 7 of the Convention recognizes that all peoples, including indigenous peoples and minority groups, should be able to create, disseminate and have access to their own cultures, it falls short of framing such interests in terms of rights and imposes merely an obligation of endeavour, rather than result, on State Parties to promote such interests. Its dispute resolution procedures are closed to individuals and interest groups, most likely to take up such cases, and its use of the term 'interculturality' rather than 'multiculturalism' appears designed to diffuse potential tensions with Parties over their internal policies of integration or assimilation'. See Craufurd Smith, above n 8, at 54.
77. Craufurd Smith, ibid, at 26 and 28.
78. Recital 17 of the UNESCO Convention's preamble recognizes 'the importance of intellectual property rights in sustaining those involved in cultural creativity'. Intellectual Property Rights used to be part of the definition of cultural goods and services during the drafting of the Convention. Article 7(2)(b) of the Preliminary Draft (CLT-2004/CONF.201/CLD.2, Paris, July 2004) provided further that Parties 'shall ensure that intellectual property rights are fully respected and enforced according to existing international instruments, particularly through the development or strengthening of measures against piracy'. For a full account of the existing IPR references during the negotiation of the UNESCO Convention, see Laurence R Heifer 'Towards a Human Rights Framework for Intellectual Property' (2007) 40 UC Davis Law Rev 971, 1004-1006.
79. We discuss the issues related to IPRs and creativity in more detail below.
80. Craufurd Smith, above n 8, at 53-54 (footnote omitted).
81. Ibid, at 30-32.
82. See also Caroline Pauwels et al 'Culture Incorporated; or Trade Revisited? How the Position of Different Countries Affects the Outcome of the Debate on Cultural Trade and Diversity' in Obuljen and Smiers, above n 8, 125-158.
83. See above n 2.
84. In full citation, the US noted during the 33rd session of the General Conference, immediately before the adoption of the UNESCO Convention: 'The United States of America is extremely disappointed with the decision that has just been taken. As we have explained in great detail, we have serious concerns about the potential of the Draft Convention to be misinterpreted in ways that might impede the free flows of ideas by word and image as well as affect other areas, including trade'. See UNESCO, Records of the General Conference, 33rd Session, 3-21 October 2005, vol. 1, at 221.
85. Craufurd Smith, above n 8, at 44.
86. What is understood here above all is the so-called International Bill of Rights comprising the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, above n 18, 19 and 20, respectively.
87. Articles 1 and 2 of the UNESCO Convention.
88. United Nations Declaration on the Rights of Indigenous Peoples, adopted with General Assembly Resolution 61/295, 13 September 2007.
89. Thomas Cottier 'Trade and Human Rights: A Relationship to Discover' (2002) 5 JIEL 111, 120-121.
90. The law of the WTO is contained in several agreements, attached as annexes to the WTO Agreement (see above n 5) that encompass the General Agreement on Trade and Tariffs (GATT), the General Agreement on Trade in Services (GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). We refer to these as the WTO Agreements. They are contained in Annex 1 of the WTO Agreement. Other Annexes organize additional aspects of liberalization such as the dispute settlement procedure (Annex 2), trade policy review mechanism (Annex 3) and certain plurilateral agreements (Annex 4).
91. See Graber, above n 4;
92. Wouters and De Meester, above n 7;
93. Hahn, above n 8.
94. Craufurd Smith, above n 8, at 47.
95. See Craufurd Smith, ibid and Voon (2006), above n 3, at 642-644.
96. WTO Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 16 January 1998, para 177 (referring to the specific context of the SPS Agreement).
97. Article 3(2) of the DSU reads: 'The dispute settlement system of the WTO is a central element in providing security and predictability to the multilateral trading system. The Members recognize that it serves to preserve the rights and obligations of Members under the covered agreements, and to clarify the existing provisions of those agreements in accordance with customary rules of interpretation of public international law. Recommendations and rulings of the DSB cannot add to or diminish the rights and obligations provided in the covered agreements'.
98. Acheson and Maule, above n 21, at 251.
99. On the notion of 'conflict', see Joost Pauwelyn Conflict of Norms in Public International Law (Cambridge University Press Cambridge 2003) 5-11.
100. Article 20(1) states that, '[p]arties recognize 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'. Article 20(2) adds on the other hand that, 'nothing in this Convention shall be interpreted as modifying rights and obligations of the Parties under any other treaties to which they are parties'.
101. Article 20(2) of the UNESCO Convention. See also Graber, above n 4, at 565-568;
102. Hahn, above n 8, at 540-546.
103. WTO Panel Report, Canada - Certain Measures Concerning Periodicals (Canada - Periodicals), WT/DS31/R, adopted 14 March 1997
104. and WTO Appellate Body Report, Canada - Certain Measures Concerning Periodicals (Canada- Periodicals), WT/DS31/AB/R, adopted 30 June 1997.
105. Garry Neil 'How Effectively Does the Convention Respond to the Cultural Challenges of Economic Globalization?' (2006) 19-21. Available at http://www.suisseculture.ch/doss/ridc/x-ridc.php (accessed 1 October 2008).
106. Graber, above n 4, at 567 and 571;
107. Voon (2006), above n 3, at 652.
108. Craufurd Smith, above n 8, at 51, referring also to Pauwelyn, above n 73, at 403-405.
109. Craufurd Smith notes in this regard: 'Arguably, the Convention was never intended by its promoters to be an innovative measure; it was primarily designed to maintain the status quo in the field of trade and culture. In particular, developed countries such as Canada and France promoted the Convention on the basis that it would provide high level political endorsement for their culturally motivated trade restrictions. It serves to justify not only their existing measures but also their refusal to make commitments in new and developing communications sectors in the future'. See Craufurd Smith, above n 8, at 53-54 (footnote omitted).
110. The Central America FTA (CAFTA) includes Costa Rica, El Salvador, Guatemala, Honduras and Nicaragua. In 2004, the Dominican Republic joined the negotiations and the agreement is now known as the DR-CAFTA.
111. Craufurd Smith, above n 8, at 48.
112. See also Sacha Wunsch-Vincent The WTO, the Internet and Trade in Digital Products (Hart Oxford) 201-232;
113. Ivan Bernier 'The Recent Free Trade Agreements of the United States as Illustration of Their New Strategy Regarding the Audiovisual Sector' (2004). Available at http://www.suisseculture.ch/doss/ridc/x-ridc.php (accessed 1 October 2008).
114. Craufurd Smith, above n 8, at 29-30.
115. See also Voon (2006), above n 3, at 652.
116. Article 23 of the UNESCO Convention describes the broad competence of the Intergovernmental Committee. In addition, this competence could be pursuant to letter (f) extended by the Conference of Parties. Together with the statistics and information that the UNESCO Secretariat is committed to compiling under Article 19, this could provide a good basis for the evaluation of domestic cultural measures and for the emergence of clear implementation criteria. See Craufurd Smith, above n 8, at 45;
117. Graber, above n 8, at 11-2.
118. Article 25 'Settlement of disputes' reads: '(1)In the event of a dispute between Parties to this Convention concerning the interpretation or the application of the Convention, the Parties shall seek a solution by negotiation; (2) If the Parties concerned cannot reach agreement by negotiation, they may jointly seek the good offices of, or request mediation by, a third party; (3) If good offices or mediation are not undertaken or if there is no settlement by negotiation, good offices or mediation, a Party may have recourse to conciliation in accordance with the procedure laid down in the Annex of this Convention. The Parties shall consider in good faith the proposal made by the Conciliation Commission for the resolution of the dispute'.
119. The dispute settlement is ultimately not compulsory and the tasks of the Intergovernmental Committee defined in Article 23(6) may not provide a solid legal basis for it to engage in interpretation of the Convention beyond commenting on the state reports [Article 23(6)(c)]. See Graber, above n 8, at 12 and Hahn, above n 8, at 533, who quite critically notes that the UNESCO Convention's dispute settlement is 'worth mentioning only as being reminiscent of the very early days of modern international law'.
120. Craufurd Smith, above n 8, at 54.
121. All follow-up actions are available at http://www.unesco.org/culture/en/ diversity/convention (accessed 1 October 2008).
122. As referred to in Articles 22.4(c) and 23.6(b) of the UNESCO Convention.
123. UNESCO, Conference of Parties to the Convention on the Protection and Promotion of the Diversity of Cultural Expressions, Resolutions of the First Session, Paris, UNESCO Headquarters, 18-20 June 2007, CE/07/1.CP/CONF/209/ Resolutions, Paris, 21 June 2007, at Resolution 1.CP 6.
124. UNESCO, Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, Item 3 of the Provisional Agenda: Preparation of Operational Guidelines for the Implementation and Application of the Provisions of the Convention: Measures to Promote and to Protect Cultural Expressions (Articles 7, 8 and 17 of the Convention), CE/08/1.EXT.IGC/3, Paris, 3 April 2008.
125. See UNESCO, Vulnerability and Threat: Insights for the Future Implementation of Article 8, prepared by David Throsby for the First Extraordinary Session of the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions (Paris, 24-27 June 2008), CE/08/1.EXT.IGC/INF.3, 14 April 2008;
126. UNESCO, Article 7: Measures to Promote the Diversity of Cultural Expressions: European Approaches, prepared by Danielle Cliche for the First Extraordinary Session of the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions (Paris, 24-27 June 2008), CE/08/1.EXT.IGC/INF. 2, 2 April 2008;
127. UNESCO, Article 7: Measures to Promote Cultural Expressions: Latin American Approaches, prepared by Sylvie Duran Salvatierra for the First Extraordinary Session of the Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions (Paris, 24-27 June 2008), CE/08/1.EXT.IGC/INF.5, 20 May 2008;
128. UNESCO, The Partnering Process, CE/08/1.EXTIGC/INF.4, 15 April 2008;
129. UNESCO, Written Contributions of Parties on the Use of the Resources of the International Fund for Cultural Diversity, CE/08/1.EXTIGC/INF.6A, 17 April 2008;
130. UNESCO, Comparative Table of Parties Contributions on the Use of the Resources of the International Fund for Cultural Diversity, CE/08/1.EXTIGC/INF. 6B, 17 April 2008.
131. UNESCO, Intergovernmental Committee for the Protection and Promotion of the Diversity of Cultural Expressions, Decisions of the First Extraordinary Session, Paris, 24-27 June 2008, CE/08/1.EXTIGC/Dec, 27 June 2008. The Draft Operational Guidelines regarding Article 7 of the Convention have been only provisionally adopted and their final adoption is to occur at the same time as the Draft Operational Guidelines for Article 6 are adopted.
132. Ibid, at 3, Article 7(1)(a) and (b).
133. Ibid, at 4, Article 7, Principle 1.6.
134. Graber, above n 4, at 561;
135. Craufurd Smith, above n 8, at 24.
136. Christoph Beat Graber 'Audio-visual Policy: The Stumbling Block of Trade Liberalisation?' in Damien Geradin and David Luff (eds) The WTO and Global Convergence in Telecommunications and Audio-Visual Services (Cambridge University Press Cambridge 2004) 165-214.
137. Martin Roy 'Audiovisual Services in the Doha Round: Dialogue de Sourds, The Sequel?' (2005) 6 Journal of World Investment and Trade 923.
138. Although arguably digital technologies have also impacted upon other cultural goods and services such as books, their production (e.g. e-books, print-on-demand) and distribution.
139. The most prominent reference here is C Edwin Baker Media, Markets, and Democracy (Cambridge University Press Cambridge 2001).
140. See Wouters and De Meester, above n 7, at 217. It is also common for studies not to provide the complete list of market-related specificities and focus only on the size of the market and the economies of scale as reasons for the market to fail (see e.g. Wouters and De Meester, above n 7, at 217-218; Hahn, above n 8, at 519-520).
141. Pierre Sauvé and Karsten Steinfatt 'Towards Multilateral Rules on Trade and Culture: Protective Regulation or Efficient Protection?' in Productivity Commission and Australian National University Achieving Better Regulation of Services (Auslnfo Canberra 2000) 323-346, at 325.
142. For an excellent analysis, see ibid, at 326-339.
143. See Anthony Giddens Runaway World: How Globalisation Is Reshaping Our Lives (Routledge London 2002). With regard to culture, for instance, Giddens (at xxiv) holds: '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 globalization 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 selfconsciously diverge from them'. Tyler Cowen also insists that global monopolies and imported technologies have also led to promoting local creativity by generating new markets for innovative, high-quality artistic productions.
144. See Tyler Cowen Creative Destruction: How Globalization Is Changing the World's Cultures (Princeton University Press Princeton 2002) 146
145. and Tyler Cowen In Praise of Commercial Culture (Harvard University Press Cambridge MA 1998) 15-43.
146. See e.g. Graber, above n 4, at 570.
147. Stylianos Papathanassopoulos European Television in the Digital Age (Polity Cambridge 2002) 14.
148. European Commission, Fifth Report on the Application of Directive 89/552/EEC 'Television without Frontiers', COM(2006) 49 final, 10 February 2006, referring to European Audiovisual Observatory, 2004 Yearbook (European Audiovisual Observatory Strasbourg, 2005).
149. Papathanassopoulos, above n 104, at 18-9, referring to Jay G Blumler 'Vulnerable Values at Stake' in Jay G Blumler (ed) Television and the Public Interest (Sage London 1992) 22-4;
150. Yves Achile and Bernard Miège 'The Limits of Adaptation Strategies of European Public Service Television' (1994) 16 Media, Culture and Society 31.
151. On the 'multi-channel paradox', whereby despite the diversity of channels, there is no actual diversity of content, see Mónica Ariño 'Competition Law and Pluralism in European Digital Broadcasting: Addressing the Gaps' (2004) 54 Communications and Strategies 97, 98 ff.
152. On the homogeneity of content, see Christoph Beat Graber Handel und Kultur im Audiovisionsrecht der WTO (Staempfli Bern 2003) 18 ff.
153. 'For too long we've been suffering the tyranny of lowest-common- denominator fare, subjected to brain-dead summer blockbusters and manufactured pop. Why? Economics. Many of our assumptions about popular taste are actually artifacts of poor supply-and-demand matching - a market response to inefficient distribution.' Chris Anderson The Long Tail: Why the Future of Business Is Selling Less of More (Hyperion New York 2006) 16.
154. This distribution reflects the well-known 80/20 rule, which was formulated by the Italian economist Vilfredo Pareto in 1896 to describe the allocation of wealth among individuals. The 80/20 rule has been observed in many areas, such as physics, biology, geography, economics and linguistics, and depicts a frequent situation of extreme distribution, whereby a relatively small proportion of elements generates a large proportion of distribution.
155. The 'long tail' effect was coined by Chris Anderson, chief editor of the Wired Magazine (see Chris Anderson 'The Long Tail' (2004) 12 (10) Wired and Anderson, above n 108). The name has to do with the image of a demand curve that gets longer and longer and covers more niche 'non-hit' products. Anderson's theory is not isolated and builds upon substantiated previous and parallel economic research. See in particular Erik Brynjolfsson et al, 'Consumer Surplus in the Digital Economy: Estimating the Value of Increased Product Variety at Online Booksellers', MIT Sloan Working Paper No 4305 (2003);
156. Erik Brynjolfsson et al 'From Niches to Riches: The Anatomy of the Long Tail' (2006) 47 Sloan Management Review 67;
157. Erik Brynjolfsson et al 'Goodbye Pareto Principle, Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales' MIT Center for Digital Business Working Paper (2007). Available at http://ssrn.com/abstract= 953587 (accessed 1 October 2008).
158. The comparison between the offline and online availability of content may be quite striking: A large CD shop may hold about 40,000 titles, while an online music store will have about 20 times more. A TV station can broadcast only one particular film in the eight o'clock slot, while its catalogue of digitally stored and distributed films may amount to more than 500 titles. Moreover, one should note that these are contradistinctions relating to only one particular distribution channel, while in the reality of the digital environment, these are multiple and simultaneously accessible.
159. James Grimmelmann, 'The Structure of Search Engine Law', New York Law School Research Paper No 23 (2007), at 2.
160. See Brynjolfsson et al (2006), above n 110. Experience with P2P networks shows equally that the initial experience of users focusing on hits is supplanted rapidly by more varied choice of content, and by adaptation and 'mashing' of content into new forms. See Chris Marsden et al Assessing Indirect Impacts of the EC Proposals for Video Regulation (RAND Europe Cambridge UK 2006) 23.
161. Also called 'wisdom of the crowds'. See James Surowiecki The Wisdom of Crowds (Anchor New York 2003).
162. In the context of search, 'tagging' may be identified as an important Web 2.0 effect. Tagging, which is basically a process of creating labels for online content by attaching a keyword to a piece of information (a picture, article or video) is 'a kind of next-stage search phenomenon', whereby online searching is advanced and personalized and digital material is organized in a tailored manner on top of existing formally defined classification schemes. See PEW Internet and American Life Project, Tagging, January 2007; David Weinberger Everything Is Miscellaneous: The Power of the New Digital Disorder (Henry Holt New York 2007).
163. See PEW Internet and American Life Project, The Broadband Difference: How Online American's Behaviour Changes with High-Speed Internet Communications at Home, 2002.
164. On positive network effects, see e.g. Carl Shapiro and Hal Varian Information Rules (Harvard Business School Press Cambridge MA 1999) 173-225.
165. As Anderson rather prophetically puts it, '[w]hen you can dramatically lower the costs of connecting supply and demand, it changes not just the numbers, but the entire nature of the market. This is not just a quantitative change, but a qualitative one, too. Bringing niches within reach reveals latent demand for non-commercial content. Then, as demand shifts toward the niches, the economics of providing them improve further, and so on, creating a positive feedback loop that will transform entire industries - and the culture - for decades to come' (see Anderson, above n 108, at 26). See also Brynjolfsson et al (2006), above n 110, at 1, 6-8.
166. See e.g. OECD, Broadband Growth and Policies in OECD Countries (OECD Paris 2008).
167. Edwin Horlings et al Contribution to Impact Assessment of the Revision of the Television without Frontiers Directive (RAND Europe Cambridge UK 2005) 6.
168. See also PEW Internet and American Life Project, More Online, Doing More, February 2001 and PEW Internet and American Life Project, Internet Penetration and Impact, April 2006.
169. Here one can mention the so-called Web 2.0 phenomenon. Web 2.0 is a phrase coined by O'Reilly Media in 2004. Proponents of the Web 2.0 concept say that it differs from early Web development (labelled Web 1.0) in that it moves away from static websites, the use of search engines and surfing from one website to the next, towards a more dynamic and interactive World Wide Web. See Tim O'Reilly 'What Is Web2.0?: Design Patterns and Business Models for the Next Generation Software' (2007) 65 Communications and Strategies 17.
170. See also OECD, Participative Web: User-Created Content, DSTI/ICCP/IE(2006)7/FINAL, 12 April 2007.
171. Urs Gasser 'Social Structures in Cyberspace: The Design and Function of Digital Institutions' (Paper for the 9th Annual Conference of the International Society for New Institutional Economics, 22-24 September 2005, Barcelona, on file with the author).
172. See also Marshall Van Alstyne and Erik Brynjolfsson 'Global Village or Cyber-Balkans? Modeling and Measuring the Integration of Electronic Communities' (2004) 51 Management Science 851.
173. See most prominently http://www.myspace.com/or http://www.facebook.com/. To reveal the sheer dynamism of these networks, O'Reilly Radar shows that during the first quarter of 2006, 280 000 new users signed up each day to MySpace and it had the second most Internet traffic.
174. See John Musser and Tim O'Reilly, Web 2.0: Principles and Best Practices, O'Reilly Radar, November 2006, at 4.
175. The content covers a wide range of types. OECD identifies eight categories: (i) text, novel and poetry; (ii) photo and images; (iii) music and audio; (iv) video and film; (v) citizen journalism; (vi) educational content; (vii) mobile content; and (viii) virtual content. See OECD, above n 121, at 15.
176. Yochai Benkler 'Freedom in the Commons: Towards a Political Economy of Information' (2003) 52 Duke Law Review 1245, 1261.
177. See OECD, above n 121, at 9-12.
178. See also PEW Internet and American Life Project, Content Creation Online, 29 February 2004.
179. See Musser and O'Reilly, above n 123.
180. For a critical opinion in this regard, see Andrew Keen The Cult of the Amateur: How Today's Internet Is Killing Our Culture (Doubleday New York 2007).
181. 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, June 2003 (English edition, August 2004), at 8.
182. See also PEW Internet and American Life Project, Artists, Musicians and the Internet, December 2004; Tom O'Regan and Ben Goldsmith 'Emerging Global Ecologies of Production' in Dan Harries (ed) The New Media Book (British Film Institute Publishing London 2004) 92-105.
183. See Yochai Benkler 'Coase's Penguin, or Linux and the Nature of the Firm' (2002) 112 Yale Law Journal 369;
184. Carol M Rose 'The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems' (1998) 83 Minnesota Law Review 129;
185. Yochai Benkler The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale University Press New Haven 2006).
186. OECD, above n 121, at 5.
187. For evidence in the audiovisual media context, see Horlings et al, above n 120, at 5.
188. See John Naughton 'Our Changing Media Ecosystem' in Ed Richards et al (eds) Communications: The Next Decade (Ofcom London 2006) 41-50.
189. See also David Graham and Associates, Impact Study of Measures (Community and National) Concerning the Promotion of Distribution and Production of TV Programmes Provided for under Article 25(a) of the TV Without Frontiers Directive, Final Report prepared for DG Information Society, 24 May 2005, at section 3.5.1.
190. RAND Europe outlines three plausible scenarios for the digital future of audiovisual media: (i) Linear continuum: where the behaviour of citizens will change at the margins, but media consumption will remain a largely linear experience; (ii) Digital content divide: where the digital 'haves' will experience greatly increased interactive media use, while an equal number of 'refuseniks' will continue exactly as before to rely on offline media and public service broadcasters; (iii) Time shifting linear consumption: where the majority of the population will use broadband and mobile or in-home devices to time-shift their media to suit their schedule instead of that of the broadcaster. Horlings et al, above n 120, at 8.
191. If Internet penetration stabilizes at 65-75% by household and mobile phone penetration at 85%, this means that a substantial proportion of people will remain offline - a minority, which is 'both the most vulnerable in society and least likely to change (typically comprising the most elderly, non-formally qualified and/or poorest quartiles)'. See Horlings et al, ibid, at 6.
192. See e.g. ES Nwauche 'African Countries' Access to Knowledge and the WIPO Digital Treaties' (2005) 8 The Journal of World Intellectual Property 361.
193. The free online encyclopaedia Wikipedia, for instance, currently contains 2,563,181 articles in English. Albeit in much smaller numbers, it does however also include articles in 263 other languages. Available at http://meta. wikimedia.Org/wiki/List-of-Wikipedias#Additional-resources-and-statistics (accessed 1 October 2008).
194. OECD, above n 121;
195. Weinberger, above n 115.
196. Here one should however acknowledge the possibilities of filtering information on the Internet, mostly done for political reasons. See Ronald J Deibert et al Access Denied: The Practice and Policy of Global Internet Filtering (MIT Press Cambridge MA 2007).
197. Footer and Graber, above n 1, at 122-123.
198. Article XX(f) GATT provides for an exception for measures 'imposed for the protection of national treasures of artistic, historic or archaeological value'. This exception is however of static nature and unable to cater for contemporary cultural concerns.
199. Article IV GATT relates to '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' [Article IV(a) GATT] 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' (Article IV(c) GATT).
200. On Article IV GATT, see Rostam J Neuwirth, 'The Cultural Industries and the Legacy of Article IV GATT: Rethinking the Relation of Culture and Trade in Light of the New WTO Round' (Paper presented at the Conference 'Cultural Traffic: Policy, Culture, and the New Technologies in the European Union and Canada', Carleton University, 22-23 November 2002).
201. The South Korean screen quota system has contributed to the rapid growth in the film market in Korea. The quality of Korean films has increased, with an inflow of capital funds into the Korean film market since 2000. The Korean government decided to reduce the screen quotas from 146 days to 73 days in 2006. As a result of the FTA between Korea and the US, agreed upon on 2 April 2007, the screen quotas are not to be increased to more than the current 73 days.
202. See Won-Mog Choi 'Screen Quota and Cultural Diversity: Debates in Korea-US FTA Talks and Convention on Cultural Diversity' (2007) 2 Asian Journal of WTO & International Health Law and Policy 267.
203. The opinions on the pros and cons of the Korean quotas diverge. We note however that recent economic analysis, such as the empirical study of Lee et al shows that the effectively enforced Korean screen quota system did not contribute to the box office performance of domestic films. Rather, it was the production budget, critical reviews and the number of screens that played a significant role and heightened the success of Korean movies. See Shi Young Lee et al 'The Effect of the Korean Screen Quota System on Box Office Performance' (2008) 42 Journal of World Trade 335.
204. See above n 33.
205. See ECJ, Case C-412/93 Société d'Importation Edouard Leclerc-Siplec v TF1 Publicité SA and M6 Publicité SA, (1994) ECRI-179, at paras 28-29
206. and ECJ, Cases C-34/95, C-35/95 and C-36/95 Konsumentombudsmannen (KO) v De Agostini (Svenska) Förlag AB and TV-Shop I Sverige AB, (1997) ECR I-03843, at paras 24-28.
207. See also Mark Wheeler 'Supranational Regulation: Television and the European Union' (2004) 19 European Journal of Communication 349, 351-357.
208. Emphases added.
209. For an overview of the national legislation put in place in the diverse Member States, see David Graham and Associates, above n 133, at chapter 6. While the majority of Member States have transcribed the definitions directly into national legislation, France and Germany apply stricter definitions. France distinguishes between audiovisual works and cinematographic works. Germany defines what is included as qualifying hours: feature films, television movies, series, documentaries and comparable productions. Six Member States - Finland, France, Italy, The Netherlands, Spain and the United Kingdom - apply higher percentage requirements (e.g. France requires all broadcasters to reserve at least 60% of their qualifying hours for European audiovisual and cinematographic works).
210. Graham and Associates, ibid and European Commission, Eighth Communication on the Application of Articles 4 and 5 of Directive 89/552/EEC 'Television without Frontiers', as amended by Directive 97/36/EC, for the period 2005-2006, COM(2008) 481 final, 22 July 2008.
211. Graham and Associates, ibid, at 14 and chapter 7. The more prescriptive a Member State is in the way that it implements Articles 4 and 5 TVWF, the higher the average ratio of European works to qualifying transmission hours in that country (ibid, at section 8.1).
212. Graham and Associates, ibid, at 181 (emphasis added) and section 4.6.3.
213. European Commission, 'European Works' Share of TV Broadcasting Time Now Stable Over 60%', IP/06/1115, Brussels, 22 August 2006. This statement remains unaltered after the latest report. Commissioner Reding stated that, 'Today's figures [showing almost two-thirds of European content] demonstrate the vitality of the EU audiovisual industry and the equal commitment of all EU Member States (old and new) to cultural diversity'.
214. See European Commission, 'New Figures Show: Almost Two-thirds of EU Television Time Is "Made in Europe"', IP/08/1207, Brussels, 25 July 2008.
215. Graber, above n 107, at 253-254.
216. Council of Europe, European Convention on Transfrontier Television (ETS No 132), done at Strasbourg, 5 May 1989. The CTT was opened for signature by the CoE Member States and other States Party to the European Cultural Convention (ETS No 018), done at Paris, 19 December 1954.
217. Article 6(2) in conjunction with Article 6(1)(a) and (b) TVWF. Pursuant to Article l(n)(ii) AVMS, these criteria remain the same.
218. Such a rationale is apparent from recital 20 AVMS. See also John D Donaldson '"Television Without Frontiers": The Continuing Tension between Liberal Free Trade and European Cultural Integrity' (1996) 20 Fordham International Law Journal 90.
219. Although it was found that, 'there is a greater appetite for US programming among European audiences than for programmes produced in other Member States [...] [because] US programme storylines have broad appeal, whereas European production has a national cultural appeal which does not travel well'. See Graham and Associates, above n 133, at 18 and section 9.3.3.
220. For an interesting comment on the global power of American popular culture (influencing through attraction rather than coercion), see Neal M Rosendorf 'Social and Cultural Globalization: Concepts, History, and America's Role' in Joseph S Nye and John D Donahue (eds) Governance in a Globalizing World (Brookings Institution Press Washington DC 2000) 109-134, at 117 ff.
221. Graham and Associates, above n 133, at section 8.5.
222. With the tiny difference that the reference to Article 6 made in Article 4(1) is deleted. Article 6 TVWF used to define what European works are. This definition is now contained in Article 1(n) AVMS.
223. The scope of application of the AVMS has been extended substantially. It covers all audiovisual media services, within which two sub-categories are defined, treated differently under the AVMS regime. The first sub-category is that of television broadcast (also called 'linear') services. It covers audiovisual media services 'provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule'. The second sub-category comprises on-demand (also called 'non-linear') audiovisual media services, which are offers of audiovisual content 'for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider'. See Article 1(e) and (g) AVMS, respectively.
224. Article 3(i)(1) AVMS (emphasis added).
225. Ibid.
226. Articles 3(i)(2) and 3(i)(3) AVMS.
227. Horlings et al, above n 120, at 66;
228. Marsden et al, above n 113, at 22-23.
229. We do so fully aware that there exist economic models that show that trade restrictions enhance welfare. Such a cultural trade model involving two countries, the US 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 Francois and Tanguy van Ypersele 'On the Protection of Cultural Goods' (2002) 56 Journal of International Economics 359, as referred to by Acheson and Maule, above n 21, at 252.
230. Germann argues that this specificity of cultural goods and services is the main one that commands intervention. See Christophe Germann 'Culture in Times of Cholera: A Vision for a New Legal Framework Promoting Cultural Diversity' (2005) 6 ERA - FORUM 109, 116.
231. See e.g. GATT, EEC - Directive on Transformer Television: Response to Request for Consultations under Article XXVII:I by the United States, DS4/4, 8 November 1989;
232. WTO, Turkey - Taxation of Foreign Film Revenues: Request for Consultations by the United States, WT/DS43/1, 17 June 1996;
233. WTO, Turkey - Taxation of Foreign Film Revenues: Request for Establishment of a Panel by the United States, WT/DS43/2, 10 January 1997;
234. Appellate Body Report, Canada-Periodicals, aboven 76.
235. For an overview, see Hahn, above n 8, at 528-530.
236. Wouters and De Meester, above n 7, at 218.
237. See above n 142.
238. Christoph Beat Graber 'Audiovisual Media and the Law of the WTO' in Graber et al, above n 3, at 47-56.
239. Graber, above n 4, at 555 and 569.
240. Tania Voon 'A New Approach to Audiovisual Products in the WTO: Rebalancing GATT and GATS' (2007) 14 UCLA Entertainment Law Review 1, 5-6.
241. See also Pierre Sauvé 'Completing the GATS Framework: Addressing Uruguay Round Leftovers' (2002) 57 Aussenwirtschaft 301, 327-333.
242. Christoph Beat Graber 'Der Kunstbegriff des Rechts im Kontext der Gesellschaft' in Institut Suisse de droit compare (ed) Liberté de l'art et indépendance de l'artiste/Kunstfreiheit und Unabhängigkeit der Kunstschaffenden (Schulthess Zurich 2005) 91-111.
243. 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'.
244. In US - Shrimp, the Appellate Body criticized the Panel's decision stating, among other things, that 'the Panel failed to recognize that most treaties have no single, undiluted object and purpose but rather a variety of different, and possibly conflicting, objects and purposes. This is certainly true of the WTO Agreement. Thus, while the first clause of the preamble to the WTO Agreement calls for the expansion of trade in goods and services, this same clause also recognizes that international trade and economic relations under the WTO Agreement should allow for "optimal use of the world's resources in accordance with the objective of sustainable development", and should seek "to protect and preserve the environment'".
245. 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, para 17.
246. See also paras 129-131, 152 and 155.
247. If the decision is of nature that would not alter the rights and obligations of the Members, it would take effect for all Members upon acceptance by two thirds of the Members, pursuant to Article X(4) WTO Agreement.
248. Graber, above n 4, at 572.
249. Laura Gomez Bustos and Pierre Sauvé, 'A Tale of Two Solitudes? Assessing the Effects of the UNESCO Convention on Cultural Diversity on WTO Law' (Paper presented at the Conference 'The New Agenda for International Trade Relations as the Doha Round Draws zto an End', University of Barcelona, 29-30 January 2007, on file with the author), at 50, referring to an interview with Hélène Ruiz-Fabri, UMR de Droit Comparé, Paris, 12 June 2006.
250. Fiona Macmillan 'Human Rights, Cultural Property and Intellectual Property: Three Concepts in Search of Relationship' in Christoph Beat Graber and Mira Burri-Nenova (eds) Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Edward Elgar Cheltenham UK 2008) 73-95, at 90, referring also to Fiona Macmillan 'International Economic Law and Public International Law: Strangers in the Night' (2004) 10 International Trade Law and Regulation 115.
251. For a detailed analysis of a waiver proposal, see Chi Carmody 'When "Cultural Identity Was Not an Issue": Thinking about Canada - Certain Measures Concerning Periodicals' (1999) 30 Law and Policy in International Business 231.
252. For an account of the different positions, see Roy, above n 97, at 926-928.
253. Ivan Bernier 'Cultural Goods and Services in International Trade Law' in Dennis Browne (ed) The Culture/Trade Quandary (Centre for Trade Policy and Law Ottawa 1998) 147.
254. See Christoph Beat Graber 'WTO: A Threat to European Film?' in Enrique Banus (ed) Proceedings of the Vth Conference 'European Culture' (University of Navarra Pamplona 2000) 865-878.
255. Graber suggests that such arthouse 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 (Graber, above n 107, at 332 and 336).
256. Voon, above n 172, at 27.
257. Graber, above n 107, at 333-337.
258. Emmanuel Cocq and Patrick Messerlin 'French Audio-Visual Policy: Impact and Compatibility with Trade Negotiations' in Paulo Guerrieri et al (eds) Cultural Diversity and International Economic Integration (Edward Elgar Cheltenham UK 2005) 48-49.
259. In the sense of Article XVIII GATS.
260. See Mira Burri-Nenova 'The Law of the World Trade Organization and the Communications Law of the European Community: On a Path of Harmony or Discord?' (2007) 41 Journal of World Trade 833.
261. WTO, Work Programme on Electronic Commerce Adopted by the General Council on 25 September 1998, WT/I7274, 30 September 1998; WTO, Work Programme on Electronic Commerce: Background Note by the Secretariat, G/C/W/128, 5 November 1998.
262. Roy, above n 97, at 941.
263. The rest of the 18 Members that undertook commitments are mostly developing countries and include the Central African Republic, the Dominican Republic, El Salvador, Gambia, Hong Kong China, India, Israel, South Korea, Mexico, Nicaragua, Singapore and Thailand.
264. Roy, above n 97, at 927.
265. See WTO Documents S/CSS/W/21 (US); S/CSS/W/74 (Switzerland); S/CSS/W/99 (Brazil). The proposal of Japan was not specific to audiovisual services and can be found in WTO Document S/CSS/M/8. There is also the Joint Statement by Hong Kong China, Japan, Mexico, Taiwan and the US, TN/S/W/49. For comments on the expressed positions, see Roy, above n 97, at 931-936.
266. Voon, above n 172, at 4. This is different from the situation where both GATT and GATS apply, without one taking precedence over the other, which is presently the case. See Appellate Body Report, Canada - Periodicals, above n 76, para 19;
267. WTO Appellate Body Report, European Communities - Regime for the Importation, Sale and Distribution of Bananas (EC - Bananas), WT/ DS/27/AB/R, adopted 9 September 1997, para 221.
268. See also Pauwelyn, above n 73, 399-405.
269. Voon, above n 172, at 19 (footnotes omitted).
270. For an overview, see Thomas Cottier and Martin Molinuevo 'Commentary on Article V GATS: Economic Integration' in Rüdiger Wolfrum et al (eds) Max-Planck Commentaries on World Trade Law, Vol. 6: WTO: Trade in Services (Brill Leiden 2008) 125-151.
271. Voon, above n 172, at 20.
272. Voon, ibid, at 20-24.
273. See also WTO, Communication from the United States, Audiovisual and Related Services, S/CSS/W/21, 18 December 2000, at para 10(iii), where the US stated that, 'Members may also want to consider developing an understanding on subsidies that will respect each nation's need to foster its cultural identity by creating an environment to nurture local culture'. The US has already accepted some leeway for subsidies in its FTAs with Singapore and Australia.
274. Voon, above n 172, at 24-25.
275. Ibid, at 25-26.
276. As Voon herself admits (ibid, at 32).
277. 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'.
278. The classification problem is similar for goods and the applied Harmonized System, created and regularly amended by the World Customs Organization. See Dayong Yu, 'The Harmonized System - Amendments and Their Impact on WTO Members' Schedules', WTO Economic Research and Statistics Division Staff Working Paper No 2 (2008), 1-23.
279. See WTO, Services Sectoral Classification List, WTO Doc.MTN.GNS/W/120, 10 July 1991.
280. UN Provisional Central Product Classification (CPC), UN Statistical Papers, Series M, No 77, Ver.1.1, E.91.XVII.7, 1991.
281. For details on audiovisual services, see Roy, above n 97, at 947-949; for telecommunications services, see Burri-Nenova, above n 188.
282. The CPC has in fact been amended twice since the end of the Uruguay Round (see Central Product Classification - Version 1.0, UN Statistical Papers, Series M, No 77, 1998, E.98.XVII.5 and Central Product Classification - Version 1.1, UN Statistical Papers, Series M, No 77, 2002, ESA/STAT/SERM/77/Ver.1.1. The CPC Version 2 is in draft and pending adoption). These updates have however not been integrated into the current negotiations.
283. Roy, above n 97, at 947. Roy has examined the existing schedule of commitments and establishes that they are not detailed but rather follow an 'all-or-nothing' approach.
284. Sacha Wunsch-Vincent 'The Digital Trade Agenda with of the US: Parallel Tracks of Bilateral, Regional and Multilateral Liberalization' (2003) 1 Aussenwirtschaft 7.
285. It should be noted that the need for careful scheduling has been stressed by the US - Gambling rulings (WTO Panel Report, United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services (US - Gambling), WT/S285/R, adopted 10 November 2004, confirmed by Appellate Body Report, WT/DS285/AB/R, adopted 7 April 2005). This may have however also a chilling effect as Members will be particularly careful to accept commitments considering that they extend to services electronically supplied across borders (see Sacha Wunsch-Vincent 'The Internet, Cross-border Trade in Services, and the GATS: Lessons from US - Gambling' (2006) 5 World Trade Review 319, 324) and also that there is a presumption that the structure and language of a schedule follow the W/120 and CPC nomenclature (see Markus Krajewski 'Playing by the Rules of the Game? Specific Commitments after US -Gambling and Betting and the Current GATS Negotiations' (2005) 32 Legal Issues of Economic Integration 417, 427).
286. In 1961, the US requested the establishment of a Working Party to examine the application of GATT 1947 to television programmes. The US argued that TV programmes are goods under GATT 1947 but do not fall under Article IV, which covers only 'cinematograph films'. The US proposed that Members be required to balance national regulations reserving transmission time to domestic programmes with reasonable access to foreign programmes. See GATT, Application of GATT to International Trade in Television Programmes, L/1615, 16 November 1961; GATT, Application of GATT to International Trade in Television Programmes: Proposal by the Government of the United States, L/2120, 18 March 1964.
287. WTO, Communication from the European Communities and their Member States: Electronic Commerce Work Programme, S/C/W/183, 30 November 2000, at para 6(a).
288. WTO, Work Programme on Electronic Commerce: Submission by the United States, WT/COMTD/17; WT/GC/16; G/C/2; S/C/7; IP/C/16, 12 February 1999.
289. Wunsch-Vincent, above n 209 and Wunsch-Vincent, above n 82.
290. See above n 210.
291. Wunsch-Vincent, above n 210, at 323.
292. On the digital trade agenda, its aims and approaches, see Wunsch-Vincent, above n 209, in particular at 11-12.
293. For a detailed discussion of the US-Singapore and the US-Chile FTAs, see Wunsch-Vincent ibid, at 28-35.
294. See also Martin Roy et al, 'Services Liberalization in the New Generation of Preferential Trade Agreements: How Much Further than the GATS?', WTO Economic Research and Statistics Division Staff Working Paper No 7 (2006), at 38-40.
295. Wunsch-Vincent, above n 209, at 15-16.
296. See also Voon, above n 172, at 25-26.
297. See above n 160.
298. Craufurd Smith, above n 8, at 49.
299. For an example, see EC-Chile Association Agreement (signed 3 October 2002), at Part IV 'Trade and Trade-related Matters'.
300. See ibid, at Part III, Title II 'Culture, Education and Audio-visual', Articles 38-40.
301. There are some good suggestions on the table, most of which propose the adoption of a negative list approach for digital services and listing very few limitations in these negative lists. See Catherine L Mann and Sarah Cleeland Knight 'Electronic Commerce in the WTO' in Jeffrey J Schott (ed) The WTO after Seattle (Institute for International Economics Washington DC 2000) 253-68, at 259;
302. Wunsch-Vincent, above n 82, at 78-79;
303. Voon, above n 172, at 17-26. It should be noted however that the WTO delegations have agreed on preserving the present architecture of GATS and following the 'positive list' approach (see WTO Economic Research and Analysis Division Market Access: Unfinished Business - Post-Uruguay Round Inventory and Issues (Geneva: WTO, 2001) 119). 225 Wunsch-Vincent, above n 82, at 71.
304. Philip Marsden A Competition Policy for the WTO (Cameron May London 2003);
305. Merit E Janow 'Trade and Competition Policy' in Patrick FJ Macrory et al The World Trade Organization: Legal, Economic and Political Analysis (Springer New York 2005), vol. 3, 487-510.
306. See Germann, above n 166, at 111;
307. Graber, above n 107, at 327-328, 343.
308. Article 4(6) of the UNESCO Convention.
309. Under IPR as a general category, one understands the rights granted to creators and inventors to control the use made of their productions. They are traditionally divided into two main branches: (i)'copyright and related (or neighbouring) rights' for literary and artistic works and (ii)'industrial property', which encompasses trademarks, patents, industrial designs, geographical indications and the layout designs of integrated circuits. In the following, we discuss primarily the first category.
310. US Constitution, at Article I, Section 8, para 8.
311. See e.g. Laurence R Heifer 'Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking' (2004) 29 The Yale JIL 1.
312. Rosemary J Coombe et al 'Bearing Cultural Distinction: Informational Capitalism and New Expectations for Intellectual Property' (2007) 40 UC Davis Law Review 891, 916, referring to Wend B Wendland 'Intellectual Property and the Protection of Cultural Expressions: The World of the World Intellectual Property Organization' in F Willem Grosheide and Jan J Brinkof (eds) Intellectual Property Law 2002 (Intersentia Antwerp 2003) 101 and 103.
313. Bellagio Declaration, done at the Rockefeller Conference 'Cultural Agency/Cultural Authority: Politics and Poetics of Intellectual Property in the Post-Colonial Era', Bellagio, 11 March 1993, reproduced in James Boyle Shamans, Software, and Spleens: Law and the Construction of the Information Society (Harvard University Press Cambridge MA 1996) 196-200.
314. See e.g. Committee on Economic, Social and Cultural Rights, General Comment No 17: The Right of Everyone to Benefit from the Protection of the Moral
315. For an interpretation, see Heifer, above n 55, at 997-1000.
316. See Wendy J Gordon 'Intellectual Property' in Peter Can and Mark Tushnet (eds) Oxford Handbook of Legal Studies (Oxford University Press Oxford 2003), 617-646;
317. William M Landes and Richard A Posner, The Economic Structure of Intellectual Property Law (Belknap Press of Harvard University Cambridge MA 2003) 11-123.
318. Julie E Cohen 'Creativity and Culture in Copyright Theory' (2007) 40 UC Davis Law Review 1151, 1193-1194.
319. In Grokster, the US Supreme Court did recognize the possible harm, noting that, '[t]he more artistic protection is favored, the more technological innovation may be discouraged'. See US Supreme Court, Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 125 S. Ct. 2764 (2005), referring to Sony Corp. of America v Universal City Studios, Inc., 464 U. S. 417 (1984), at 442.
320. See recently Cohen, above n 236 and Julie E Cohen 'The Place of the User in Copyright Law' (2005) 74 Fordham Law Review 347.
321. See also Eben Moglen 'Anarchism Triumphant: Free Software and the Death of Copyright' in Niva Elkin-Koren and Neil W Netanel (eds) The Corn-modification of Information (Kluwer Law International The Hague 2002) 107-132;
322. David Lange 'Reimagining the Public Domain' (2003) 66 Law and Contemporary Problems 463.
323. Vaidhyanathan notes in this regard: 'Copyright in recent years has certainly become too strong for its own good. It protects more content and outlaws more acts than ever before. It stifles creativity and hampers the discovery and sharing of culture and knowledge'. See Siva Vaidhyanathan 'The Googlization of Everything and the Future of Copyright' (2007) 40 UC Davis Law Review 1207, 1210.
324. Sharing this position, see also David Bollier Silent Theft: The Private Plunder of Our Common Wealth (Routledge London 2003);
325. Siva Vaidhyanathan Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York University Press New York 2003).
326. Julie E Cohen 'Pervasively Distributed Copyright Enforcement' (2006) 95 Georgetown Law Journal 1.
327. Lawrence Lessig '(Re)creativity: How Creativity Lives' in Helle Porsdam (ed) Copyright and Other Fairy Tales: Hans Christian and the Commodification of Creativity (Edward Elgar Cheltenham UK 2006) 15-22, at 19.
328. See http://creativecommons.org/. There are also some other types of licences designed by the Creative Commons, such as public domain, developing nations, sampling, founder's copyright, GNU, Wiki and music sharing. The 'developing nations' licence, for instance, allows a wide range of royalty-free uses of a work in developing nations, while retaining full copyright in the developed world.
329. Under a cc-licence, the Creator/Licensor may shape her or his package of rights applying different conditions to the licensed work (attribution; non-commercial; no derivatives; or share alike). Such models have proven also to feed back positively into the user-created content creation and dissemination, thereby enhancing content diversity (see OECD, above n 121, at 14).
330. Geneva Declaration on the Future of the WIPO, done in Geneva, 12 October 2004, available at http://www.futureofwipo.org (accessed 1 October 2008), at Article 1.
331. See also James Boyle 'A Manifesto on WIPO and the Future of Intellectual Property' (2004) 9 Duke Law and Technology Review 1.
332. Ronan Deazley Rethinking Copyright: History, Theory, Language (Edward Elgar Cheltenham UK 2008).
333. See Lawrence Lessig Free Culture (Penguin London 2004).
334. Rosemary J Coombe 'Protecting Cultural Industries to Promote Cultural Diversity: Dilemma for International Policy-Making Posed by the Recognition of Traditional Knowledge' in Keith E Maskus and Jerome H Reichman (eds) International Public Goods and Transfer of Technology under a Globalized Property Regime (Cambridge University Press Cambridge 2005) 559-614, at 613.
335. See Anupam Chander and Madhavi Sunder 'The Romance of the Public Domain' (2004) 92 California Law Review 1331.
336. See Rosemary J Coombe 'Fear, Hope, and Longing for the Future of Authorship and a Revitalized Public Domain in Global Regimes of Intellectual Property' (2003) 52 DePaul Law Review 1171.
337. WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Consolidated Analysis of the Legal Protection of Traditional Cultural Expressions, WIPO/GRTKF/IC/5/3, 2 May 2003, Annex, at para 8.
338. Draft 9 May 2005, available at http://www.cptech.org/a2k/ (accessed 1 October 2008). For a similar initiative, see also P Bernt Hugenholtz and Ruth L Okediji, Conceiving an International Instrument on Limitations and Exception to Copyright, Study sponsored by the Open Society Institute, 6 March 2008.
339. A2K Treaty, ibid, at Articles 3-1, 3-5, 3-6, 3-9, 5 and 6.
340. See also Brian Fitzgerald et al, Creating a Legal Framework for Copyright Management of Open Access within the Australian Research Sector, OAK Law Project Report No 1 (2006), at 99-102.
341. Heifer, above n 55, at 1014.
342. See Maskus and Reichman, above n 246.
343. See Netherlands Council for Culture, above n 129.
344. Vaidhyanathan, for instance, questions the role of Google as ubiquitous search engine and asks whether public libraries may be more appropriate to administer knowledge. See Vaidhyanathan, above n 238, at 1220.
345. For a more optimistic vision of Google's role, see Leslie A Kurtz 'Copyright and the Human Condition' (2007) 40 UC Davis Law Review 1233, 1250-1251.
346. John G Palfrey, Jr. and Robert Rogoyski 'The Move to the Middle: The Enduring Threat of 'Harmful' Speech to the End-to-End Principle' (2006) 21 Washington University Journal of Law and Policy 31.
347. The principle of net(work) neutrality or in its broader sense, the end-to-end principle, essentially holds that the network should be neutral to the passed content and that intermediaries should pass all packets, while the intelligence is located at the edges of the network where necessary. For an excellent account of the 'net neutrality' discussions, see Susan P Crawford 'Network Rules' (2007) 70 Law and Contemporary Problems 51;
348. Tim Wu 'Network Neutrality, Broadband Discrimination' (2003) 2 Journal on Telecommunications and High Technology Law 141.
349. United Nations, Fragmentation of International Law: Difficulties Arising from The Diversification and Expansion of International Law, Report of the Work of the Study Group of the International Law Commission, finalized by Martti Koskenniemi, A/CN.4/L.682, 13 July 2006, at para 493.
350. '[E]ven a cursory look at international trade in cultural products shows two contradictory but important trends. Developed countries at the forefront of efforts to "protect" cultural diversity are at the forefront of cultural trade as well. Developing countries as a whole, band-wagoning on the protections wagon, in fear of losing out from such trade, are actually gaining increased shares, even though they remain marginal'. JP Singh 'Culture or Commerce? A Comparative Assessment of International Interactions and Developing Countries at UNESCO, WTO, and Beyond' (2007) 8 International Studies Perspectives 36, 42. See also the data exemplifying this statement, at 43-45.
351. Hahn, above n 8, at 533.
352. WTO, Communication from the United States: Audiovisual and Related Services, S/CSS/W/ 21, 18 December 2000, at para 2.
353. Footer and Graber, above n 1, at 130-133.
354. See also UNESCO, Article 7: Measures to Promote the Diversity of Cultural Expressions: European Approaches, above n 92.
355. See also UNESCO Convention, recital 19 of the preamble.
356. Very interestingly, this has been noted in the recent guidelines issued following the UNESCO Convention, whereby Parties were encouraged to place specific emphasis on measures and polices aimed at promoting the diversity of cultural expressions that are best adapted to the new technological environment, and to foster the transfer of information and expertise to help cultural professionals and the cultural industries to acquire the knowledge and skills required to benefit fully from the perspectives offered by these new technologies (see UNESCO, above n 93, at 5, para 3). The World Summit on the Information Society (WSIS) has also stated that, 'The creation, dissemination and preservation of content in diverse languages and formats must be accorded high priority in building an inclusive Information Society, paying particular attention to the diversity of supply of creative work and due recognition of the rights of authors and artists. It is essential to promote the production of and accessibility to all content - educational, scientific, cultural or recreational - in diverse languages and formats'.
357. See WSIS, Declaration of Principles: Building the Information Society: A Global Challenge in the New Millennium, Document WSIS-03/GENEVA/DOC/4-E, 12 December 2003, at para 53.
358. For other initiatives, see Tarlach McGonagle 'The Promotion of Cultural Diversity via New Media Technologies: An Introduction to the Challenges of Operationalisation' (2008) 6 IRIS: Legal Observations of the European Audiovisual Observatory 1.
359. Australia, for instance, has emphasized the need for 'appropriate inter-agency coordination to guarantee a whole-of-government approach' in relation to the UNESCO Convention. See WTO General Council, Minutes of the Meeting Held on 20 October 2004, WT/GC/M/88, 11 November 2004, at para 65, as referred to by Voon (2006), above n 3, at 643.
360. With specific regard to audiovisual media, see Mira Burri-Nenova 'The Changing Environment of Audiovisual Media: New Technologies, New Patters of Consumer/Business Behaviour and Their Implications for Audiovisual Media Regulation' (2007) 4 medialex 171.
361. On the AVMS, see Mira Burri-Nenova 'The New Audiovisual Media Services Directive: Television without Frontiers, Television without Cultural Diversity' (2007) 44 Common Market Law Review 1689.
362. On the emergence of cultural diversity as a concept of public international law, see Graber, above n 4, at 553-558.
363. See Gunther Teubner and Andreas Fischer-Lescano 'Cannibalizing Epistemes: Will Modern Law Protect Traditional Cultural Expressions?' in Graber and Burri-Nenova, above n 179, 17-45, at 19.
364. See European Commission, Proposal for a European Parliament and Council Directive amending Directive 2006/116/EC of the European Parliament and of the Council on the Term of Protection of Copyright and Certain Related Rights, COM(2008) 464/3, 16 July 2008.
365. Mizuko Ito et al 'Foreword' in Katie Salen (ed) The Ecology of Games: Connecting Youth, Games, and Learning (MIT Press Cambridge MA 2008), vii.
366. See also John Palfrey and Urs Gasser Born Digital: Understanding the First Generation of Digital Natives (Basic Books New York 2008).