Trade and culture in international law: Paths to (Re)conciliation

Journal of World Trade

Volumn 44, Issue 1, 2010, Pages 49-80

  Burri Nenova, Mira ^a  

^a UNIVERSITY OF BERN   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

CULTURE; DECISION MAKING; INTERNATIONAL LAW; INTERNATIONAL TRADE; TRADE PERFORMANCE; UNESCO; WORLD TRADE ORGANIZATION;

EID: 77955681653     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2010002     Document Type: Article

References (234)

1. For an interdisciplinary overview of the 'trade and...' debates and for their current state of the art, see Manfred Elsig & Cédric Dupont, 'Trade-And? The World Trade Organization's Fuzzy Borders: A Framework Paper' (paper presented at the Conference 'Trade-And? The World Trade Organization's Fuzzy Borders', Graduate Institute of International and Development Studies Geneva, 5-6 Feb. 2009; draft version of January 2009; on file with the author). For a legal perspective, see Andrew T.F. Lang, 'Reflecting on "Linkage": Cognitive and Institutional Change in the International Trading System', The Modern Law Review 70, no. 4 (2007): 523-549. For references to the key 'linkage' literature, see Lang, ibid., 1, n. 2.
2. The choice of law and choice of forum on the horizontal plane are a leading issue in the 'trade and...' debate. See Joel P. Trachtman, 'Transcending "Trade and...": An Institutional Perspective', Discussion Draft, 29 May 2001, at Abstract.
3. One-hundred forty-eight countries voted for the adoption of the Convention, while four countries (Australia, Honduras, Nicaragua and Liberia) abstained. Only two countries, the United States and Israel, opposed. As of 21 Apr. 2009, ninety-eight countries, as well as the European Community, had ratified the UNESCO Convention (see , last accessed 10 Jun. 2009).
4. See Ivan Bernier, 'A UNESCO International Convention on Cultural Diversity', in Free Trade versus Cultural Diversity: WTO Negotiations in the Field of Audiovisual Services, ed. Christoph Beat Graber, Michael Girsberger & Mira Nerova, (Zurich: Schulthess, 2004), 65-76; Americo Beviglia-Zampetti, 'WTO Rules in the Audio-Visual Sector,' in Cultural Diversity and International Economic Integration: The Global Governance of the Audio-Visual Sector, ed. Pauto Guerri- eri, P. Lelio Iapadre & Georg koopman (Cheltenham, UK: Edward Elgar, 2005), 261-284; Tania Voon, 'UNESCO and the WTO: A Clash of Cultures?', International and Comparative Law Quarterly 55, no. 3 (2006): 635-652; Tania Voon, Cultural Products and the World Trade Organization (Cambridge: Cambridge University Press, 2007), 173-216.
5. Rachael Craufurd Smith, 'The UNESCO Convention on the Protection and Promotion of Cultural Expres- sions: Building a New World Information and Communication Order?', International Journal of Communication 1 (2007): 24-55, 28-29.
6. See UNESCO, Agreement on the Importation of Educational, Scientific and Cultural Materials, done at Florence, 17 Jun. 1950 ('Florence Agreement'). The Agreement was updated with the Nairobi Protocol (done at Nairobi, 26 Nov. 1976). More recent acts are the Council of Europe Declaration on Cultural Diversity, done at Strasbourg, 7 Dec. 2000 and the UNESCO Universal Declaration on Cultural Diversity, done at Paris, 2 Nov. 2001.
7. See, for example, UNESCO, Convention Concerning the Protection of the World Cultural and Natural Heritage, done at Paris, 16 Nov. 1972; UNESCO, Convention for the Safeguarding of the Intangible Cultural Heritage, done at Paris, 17 Oct. 2003, and Council of Europe, European Landscape Convention, European Treaty Series No. 176, done at Florence, 20 Oct. 2000.
8. See, for example, Christoph Beat Graber, 'The New UNESCO Convention on Cultural Diversity: A Counterbalance to the WTO', Journal of International Economic Law 9, no. 3 (2006): 553-574.
9. Graber, ibid., 564-565.
10. See, for example, Frederick Scott Galt, 'The Life, Death, and Rebirth of the "Cultural Exception", in the Multilateral Trading System: An Evolutionary Analysis of Cultural Protection and Intervention in the Face of Ameri- can Pop Culture's Hegemony', Washington University Global Studies Law Review 3, no. 3 (2004): 909-935. See also, infra s. 4.
11. In full citation: 'Culture is the heart of a nation. As countries become more economically integrated, nations need strong domestic cultures and cultural expression to maintain their sovereignty and sense of identity. Indeed, some have argued that the worldwide impact of globalization is manifesting itself in the reaffirmation of local cultures. Canadian books, magazines, songs, films, new media, radio and television programs reflect who we are as a people. Cultural industries shape our society, develop our understanding of one another and give us a sense of pride in who we are as a nation.' See Canadian Cultural Industries Sectoral Advisory Group on International Trade (SAGIT), New Strategies for Culture and Trade: Canadian Culture in a Global World, 1999, at Executive Summary, paras 1 and 2.
12. The UNESCO Convention has been discussed by a number of authors. See, for example, Michael Hahn, 'A Clash of Cultures? The UNESCO Diversity Convention and International Trade Law', Journal of International Economic Law 9, no. 3 (2006): 515-552; Graber, supra n. 8; Christoph Beat Graber, 'Substantive Rights and Obligations under the UNESCO Convention on Cultural Diversity' in Protection of Cultural Diversity from an International and European Perspec- tive, ed. Hildegard Schneider & Peter van den Bossche (Antwerp: Intersentia, 2008): 141-162; Craufurd Smith, supra n. 5; Jan Wouters & Bart De Meester, 'The UNESCO Convention on Cultural Diversity and WTO Law: A Case Study in Fragmentation of International Law', Journal of Trade Law 41, no. 1 (2008): 205-240; Rolf H. Weber, 'Cultural Diver- sity and International Trade - Taking Stock and Looking Ahead' in The World Trade Organization and Trade in Services, ed. Kern Alexander & Mads Andenas (Leiden: Martinus Nijhoff, 2008), 823-843, Christopher M. Bruner, 'Culture, Sover- eignty, and Hollywood: UNESCO and the Future of Trade in Cultural Products', International Law and Politics 40 (2008): 351-436, as well as the contributions to UNESCO's Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Making It Work, ed. Nia obuljen & Joast Smiers (Zagreb: Institute for International Relations, 2006).
13. Articles 5-19 of the UNESCO Convention.
14. Articles 7-11 of the UNESCO Convention.
15. Articles 12-19 of the UNESCO Convention, excluding Art. 16, which is of binding nature.
16. Graber, supra n. 12.
17. Another provision that could qualify as a binding obligation relates to the cooperation in providing assistance, in particular to developing countries, in situations of serious threat to cultural expressions (Art. 17 of the UNESCO Convention).
18. See GATT, Decision of 28 Nov. 1979 (L/4903), Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries ('Enabling Clause'). See also, Bernard Hoekman, 'More Favorable Treatment of Developing Countries: Ways Forward', in Trade, Doha, and Development: Window into the Issues, ed. Richard Newfarmer (Washington, DC: World Bank, 2006), 213-221; Seung Wha Chang, 'WTO for Trade and Development Post-Doha', Journal of International Economic Law 10, no. 3 (2007): 553-570.
19. Article 16 of the UNESCO Convention. For a comprehensive analysis, see Keith Nurse, Expert Report on Pref- erential Treatment (Art. 16) in the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, 10 Oct. 2008. Concluding his analysis, Nurse notes (at p. 24) that, '... the potential scope and impact of pref- erential treatment under the UNESCO Art. 16 is quite narrow. Indeed, it can be argued that the main benefits are defined in terms of cultural cooperation and not in commercial terms. What Art. 16 can facilitate are cultural exchanges, training, technical assistance and collaborations. The prospects for advancing the aims of expanding cultural industries and generating cultural exports are limited in scope and consequently it is difficult to see how Art. 16 of the Convention, on its own, can adequately contribute to the protection and promotion of diversity of cultural expressions in a rapidly commercializing global cultural economy'.
20. Craufurd Smith, supra n. 5, 39 and Art. 9(a) of the UNESCO Convention.
21. For instance, in the framework of the EC 'Television without Frontiers' Directive, where Member States are obliged to report every two years on the application of Arts 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 Oct. 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ 1989 L 298/23, at Art. 4(3)). Under the 2007 Audiovisual Media Services Directive (introduced through amendment by Directive 2007/65/EC), this obligation remains.
22. Craufurd Smith, supra n. 5, 37-38.
23. See Art. 6(2)(a)-(h) of the UNESCO Convention.
24. Article 6(2)(a) of the UNESCO Convention.
25. Article 6(2)(h) of the UNESCO Convention. For an overview of the domestic cultural policy measures, see Mary E. Footer & Christoph Beat Graber, 'Trade Liberalisation and Cultural Policy', Journal of International Economic Law 3, no. 1 (2000): 115-144, 122-126.
26. Craufurd Smith, supra n. 5, 40. In this sense, it also diverges from the contemporary theory of regulation seeking the slightest possible interference (see, for example, The Limits of Market Organisation, ed. Richard R. Nelson (New York: Russell Sage, 2005); Anthony I. Ogus, Regulation: Legal Form and Economic Theory (Oxford: Clarendon Press, 1994).
27. Article 4(1) defines 'cultural diversity' as referring 'to the manifold ways in which the cultures of groups and societies find expression. These expressions are passed on within and among groups and societies'.
28. The United States 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:
29. See supra n. 12. See also, Mira Burri-Nenova, 'Trade and Culture: Making the WTO Legal Framework Conducive to Cultural Considerations', Manchester Journal of International Economic Law 5, no. 3 (2008): 3-39 and Mira Burri-Nenova, 'Trade versus Culture in the Digital Environment: An Old Conflict in Need of a New Definition', Journal of International Economic Law 12, no. 1 (2009): 17-62.
30. The UNESCO Convention stresses that cultural goods and services have a distinctive nature as 'vehicles of identity, values and meaning' and that they intrinsically 'embody or convey cultural expressions, irrespective of the commercial value they may have'. See Arts 1(g) and 4(4) of the UNESCO Convention.
31. Craufurd Smith, supra n. 5, 40-41.
32. The Convention's exponents still hope that the Intergovernmental Committee and the Convention's own dispute resolution mechanisms will fill in some gaps, since both allow evolutionary advances, depending upon the willingness of the Parties. It should be noted however that the dispute settlement is ultimately not compulsory and the tasks of the Inter- governmental Committee defined in Art. 23(6) may not provide a solid legal basis for it to engage in interpretation of the Convention beyond commenting on the state reports (Art. 23(6)(c)). See Hahn, supra n. 12, 533, who critically remarks that the UNESCO Convention's dispute settlement is 'worth mentioning only as being reminiscent of the very early days of modern international law'.
33. 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.'
34. The principle of sovereignty of Art. 2(2) reads: '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, supra n. 5, 37.
35. In the narrow sense we mean here, above all, Art. 27 of the International Covenant on Civil and Political Rights (CCPR) and Art. 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights (CESCR). See Asbjørn Eide, 'Cultural Rights as Individual Human Rights,' in Economic, Social and Cultural Rights, ed. Asbjørn Eide, Catarina Krause & Allan Rosas, 2nd edn (The Hague: Kluwer Law International, 2001), 289-301; Elsa Stamatopoulou, Cultural Rights in International Law (Leiden: Brill, 2007).
36. Articles 2(1), 2(3) and 7 of the UNESCO Convention. On the relationship between the Convention and human rights, see Graber, supra n. 8, 560-563.
37. Craufurd Smith, supra n. 5, 28 and 37.
38. Article 5 of the UNESCO Declaration states in the relevant part that, '[a]ll 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'.
39. Recitals 8, 13 and 15 of the preamble, Arts 2(3) and 7(1) (a) of the UNESCO Convention.
40. The Convention also in this sense ignores recent developments in international law, such as the United Nations Declaration on the Rights of Indigenous Peoples, adopted with General Assembly Resolution 61/295, 13 Sep. 2007.
41. See Nicole Aylwin & Rosemary J. Coombe, 'Cultural Pluralism Protects Traditional Knowledge', 2006, available at: , last accessed 10 Jun. 2009; See also, Craufurd Smith, supra n. 5, 54.
42. Craufurd Smith, supra n. 5, 26 and 28.
43. 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 IPR references during the negotiation of the UNESCO Convention, see Laurence R. Helfer, 'Towards a Human Rights Framework for Intellectual Property', UC Davis Law Review 40 (2007): 971-1020, 1004-1006.
44. On the notion of 'conflict', see Joost Pauwelyn, Confl ict of Norms in Public International Law (Cambridge:Cambridge University Press, 2003), 5-11.
45. For all possibilities of conflict between the norms of the WTO, the commitments of the Members under them, and the measures taken under the UNESCO Convention for the protection and promotion of the diversity of cultural expressions, see Anke Dahrendorf, 'Free Trade Meets Cultural Diversity: The Legal Relationship between WTO Rules and the UNESCO Convention on the Protection of the Diversity of Cultural Expressions', in Protection of Cultural Diversity from an International and European Perspective, ed. Hildegard Schneider & Peter van den Bossche (Antwerp: Intersentia, 2008), 31-84. See also, Graber, supra n. 8; Wouters and De Meester, Bruner, and Hahn, all supra n. 12.
46. Article 20(2) of the UNESCO Convention.
47. Article 20(1) of the UNESCO Convention.
48. See in this regard, for example, Graber, supra n. 8, 565-568; Hahn, supra n. 12, 540-546.
49. Article 20(1) of the UNESCO Convention.
50. WTO Panel Report, Canada - Certain Measures Concerning Periodicals (Canada - Periodicals), WT/DS31/R, adopted 14 Mar. 1997 and WTO Appellate Body Report, Canada - Periodicals, WT/DS31/AB/R, adopted 30 Jun. 1997.
51. Garry Neil, 'How Effectively Does the Convention Respond to the Cultural Challenges of Economic Globaliza- tion?', 6 Mar. 2006, available at:
52. WTO Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 16 Jan. 1998, para. 177 (referring to the specific context of the WTO Agreement on the Applications of Sanitary and Phytosanitary Measures (SPS Agreement)).
53. 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.'
54. WTO Panel Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products (US - Shrimp), WT/DS58/R, adopted 15 May 1998, modified by WTO Appellate Body Report, US - Shrimp, WT/DS58/AB/R, adopted 12 Oct. 1998.
55. See, for example, Graber, supra n. 8, 567.
56. More than the deference the WTO adjudicatory bodies have already shown towards domestic regulators. See, for example, Eric H. Leroux, 'From Periodicals to Gambling: A Review of the Systemic Issues Addressed by WTO Adjudicatory Bodies under the GATS', in GATS and the Regulation of International Trade in Services, ed. Marion Panizzon, Nicole Pohl & Pierre Sauvé (Cambridge: Cambridge University Press, 2008), 236-275, 266-270.
57. This is in contrast to the opinion expressed by Shaffer and Pollack. See Gregory Shaffer & Mark Pollack, 'How Hard and Soft Law Interact in International Regulatory Governance: Alternatives, Complements and Antagonists', paper presented at the Conference 'Trade-And? The World Trade Organization's Fuzzy Borders', Graduate Institute of International and Development Studies Geneva, 5-6 Feb. 2009; draft version of 12 Jan. 2008; on file with the author, 58-62.
58. Keith Acheson & Christopher Maule, 'Convention on Cultural Diversity', Journal of Cultural Economics 28 (2004): 243-256, 251. As Bruner also notes, '[i]f article 20 can be read to require nothing more than a good faith effort to interpret prior treaties in a manner consistent with the Culture Convention's goals, then there is real reason to doubt that a WTO dispute resolution panel would exert itself to locate outcome-determinative rules and principles in the Culture Convention - particularly when the little relevant WTO case law indicates that cultural products will not be treated differently from anything else subject to trade disciplines'. See Bruner, supra n. 12, 407 (footnotes omitted).
59. WTO Appellate Body Report, China - Measures Affecting Trading Rights and Distribution Services for Certain Publica- tions and Audiovisual Entertainment Products (China - Publications and Audiovisual Products), WT/DS363/AB/R, adopted 21 Dec. 2009.
60. WTO Panel Report, China - Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China - Publications and Audiovisual Products), WT/DS363/R, adopted 12 Aug. 2009.
61. Ibid., para. 4.207, referring to Art. 20 of the UNESCO Convention.
62. para. 4.207, referring to Art. 20 of the UNESCO Convention.
63. WTO Appellate Body Report, China - Publications and Audiovisual Products, para. 25, referring to China's appellant's submission, para. 12.
64. WTO Panel Report, China - Publications and Audiovisual Products, para. 7.751.
65. WTO Panel Report, US - Gambling, paras 6.461 and 6.465.
66. WTO Panel Report, China - Publications and Audiovisual Products, para. 7.913. For the Panel's examination of all measures at issue, see paras 7.750-7.917.
67. It was only with regard to the State plan requirement in Article 42 of the Publications Regulation that the Panel found that in the absence of reasonably available alternatives, the measure can be characterized as 'necessary' to protect public morals in China (para. 7.836). On appeal, the Appellate Body found this an error and reversed the Panel's decision.
68. Craufurd Smith, supra n. 5, 53-54 (footnote omitted).
69. Ibid., 30-32. See also, Caroline Pauwels, Jan Loisen & Karen Donders, 'Culture Incorporated; or Trade Revisited? How the Position of Different Countries Affects the Outcome of the Debate on Cultural Trade and Diversity', in UNESCO's Convention on the Protection and Promotion of the Diversity of Cultural Expressions: Making It Work, ed. Nina Obuljen & Joost Smiers (Zagreb: Institute for International Relations, 2006), 125-158.
70. Graber, supra n. 8, 567 and 571; Voon, 2006, supra n. 4, 652.
71. Article 20(1)(b) of the UNESCO Convention.
72. Craufurd Smith, supra n. 5, 48. See also, Sacha Wunsch-Vincent, The WTO, the Internet and Trade in Digital Products (Oxford: Hart, 2006), 201-232; Ivan Bernier, 'The Recent Free Trade Agreements of the United States as Illustration of Their New Strategy Regarding the Audiovisual Sector', April 2004, available at: , last accessed 10 Jun. 2009.
73. Craufurd Smith, supra n. 5, 29-30. See also, Voon, 2006, supra n. 4, 652.
74. In full citation, the United States noted at 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 Oct. 2005, vol. 1, 221.
75. See, for example, Graber, supra n. 8, 560-563.
76. The Multilateral Trade Regime: Which Way Forward?, The Report of the First Warwick Commission, Coventry (UK: University of Warwick, 2007), 26.
77. For some classic thoughts in this regard, see Paul Krugman, 'Competitiveness: A Dangerous Obsession', Foreign Affairs 73, no. 2 (1994): 28-44.
78. For a critique of the cultural industries and on the homogeneity of content, see Christoph Beat Graber, Handel und Kultur im Audiovisionsrecht der WTO (Bern: Staempfli, 2003), 18 et seq.
79. See, for example, Anthony Giddens, Runaway World: How Globalisation Is Reshaping Our Lives (London: Routledge, 2002). With regard to culture, Giddens (at p. 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 globalisation is to produce greater local cultural diversity, not homogeneity. The United States itself is the very opposite of a cultural monolith, comprising as it does a dazzling variety of different ethnic and cultural groups. Because of its "push-down" effect [...] globalisation tends to promote a renewal of local cultural identities. Sometimes these reflect wider world patterns, but very often they self-consciously diverge from them.' Tyler Cowen also insists that global monopolies and imported technologies have led to promoting local creativity by generating new markets for innovative, high-quality artistic productions. See Tyler Cowen, Creative Destruction: How Globalization Is Changing the World's Cultures (Princeton: Princeton University Press, 2002), 146 and Tyler Cowen, In Praise of Commercial Culture (Cambridge, MA: Harvard University Press, 1998), 15-43 in particular.
80. Bruner, supra n. 12, 432, referring also to Neil W. Netanel, 'The Commercial Mass Media's Continuing Fourth Estate Role', in The Commodifi cation of Information, ed. Niva Elkin-Koren & Neil W. Netanel (The Hague: Kluwer Law International, 2002), 317-339, 317-318; C. Edwin Baker, Media, Markets, and Democracy (Cambridge: Cambridge University Press, 2001), 125-216.
81. Tom O'Regan & Ben Goldsmith, 'Making Cultural Policy: Meeting Cultural Objectives in a Digital Environment', Television and New Media 7, no. 1 (2006): 68-91, 88.
82. Madhavi Sunder, 'Cultural Dissent', Stanford Law Review 54 (2001): 495-567, 498.
83. See, for example, Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis University of Minnesota Press, 1996), 48; Arif Dirlik, The Postcolonial Aura: Third World Criticism in the Age of Global Capitalism (Boulder, CO: Westview Press, 1998), 72.
84. Yudhishtir Raj Isar, 'Cultural Diversity', Theory, Culture and Society 23, no. 2/3 (2006): 371-375, 372, referring to Nick Stevenson, Cultural Citizenship: Cosmopolitan Questions (Maidenhead: Open University Press, 2003), 62. In terms of trade and culture, Singh has also noted that, '[t]he cultural voices coming through on the international commercial networks rely less on some primeval notion on authentic diversity than on hybridity and innovation. They serve to illustrate not just the complexity of cultures and their transnational linkages but, more importantly, a distinctiveness that is confident of borrowing from genres around the world and more or less unafraid of commercial processes'. See J. P. Singh, 'Culture or Commerce? A Comparative Assessment of International Interactions and Developing Countries at UNESCO, WTO, and Beyond', International Studies Perspectives 8 (2007): 36-53, 50, referring to Nestor Garcia Caclini, Hybrid Cultures: Strategies for Entering and Leaving Modernity (Minneapolis: University of Minnesota Press, 1995); Ulf Hannerz, Cultural Complexity: Studies in the Social Organization of Meaning (New York: Columbia University Press, 1993); Ulf Hannerz, Transnational Connections: Culture, People, Places (London: Routledge, 1996).
85. Bruner, supra n. 12, 363-364, referring to Oliver R. Goodenough, 'Defending the Imaginary to the Death?: Free Trade, National Identity, and Canada's Cultural Preoccupation', Arizona Journal of International and Comparative Law 15 (1998): 203-253, 209-210. See also, Ian Slotin, 'Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination', Yale Law Journal 118, no. 8 (2002): 2289-2320.
86. Bonnie J.K. Richardson, Vice-President Trade and Federal Affairs, Motion Picture Association of America, Imped- iments to Digital Trade: Hearing before the Subcommission on Commerce, Trade and Consumer Protection of the House Committee on Energy and Commerce, 107th Congress 17, 2001. For data on Hollywood's dominance worldwide, see Bruner, supra n. 12, 354.
87. See, for example, Graber, supra n. 8, 570.
88. Pursuant to the Services Sectoral Classification List, audiovisual services encompass: motion picture and video tape production and distribution services; motion picture projection services; radio and television services; radio and television transmission services; sound recording and others. See WTO, Services Sectoral Classification List, WTO Doc.MTN. GNS/W/120, 10 Jul. 1991, at 2(D).
89. 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?', Journal of World Trade 41, no. 4 (2007): 833-878.
90. WTO, Work Programme on Electronic Commerce Adopted by the General Council on 25 Sep. 1998, WT/L/274, 30 Sep. 1998; WTO, Work Programme on Electronic Commerce: Background Note by the Secretariat, G/C/W/128, 5 Nov. 1998.
91. Martin Roy, 'Audiovisual Services in the Doha Round: Dialogue de Sourds, The Sequel?', Journal of World Investment and Trade 6, no. 6 (2005): 923-952, 941.
92. The rest of the eighteen 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.
93. Roy, supra n. 83, 927.
94. See WTO Documents S/CSS/W/21 (United States); 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 United States, TN/S/W/49. For comments on the expressed positions, see Roy, supra n. 83, at 931-936. See also, Rafael Leal-Arcas, 'Services as Key for the Conclusion of the Doha Round', Legal issues of Economic Integration 35, no. 4 (2008): 301-321.
95. The most prominent reference here is Baker, supra n. 72.
96. See Wouters & De Meester, supra n. 12, 217. It is 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, for example, Wouters & De Meester, supra n. 12, 217-218; Hahn, supra n. 12, 519-520). In a more comprehensive version, failures typical of the markets for cultural goods and services can be identified as: (1) failures due to economies of scale in production and distribution; (2) failures due to the nature of competition in products with substantial public goods aspects;(3) failures due to the impact of externalities on the pricing of cultural products; and (4) failures due to collective action problems. See Pierre Sauvé & 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 (Canberra: AusInfo, 2000), 323-346, 325.
97. See, for example, Galt, supra n. 10, 917-919. See also, generally Richard A. Posner, The Economic Analysis of Law, 7th edn (The Hague: Aspen Publishers, 2007).
98. There are for instance economic models that show that trade restrictions enhance welfare. Such a cultural trade model involving two countries, the United States 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 can- not; nationals of one country cannot invest or participate as professionals in the other's film industry, and there is no price discrimination. See Patrick François & Tanguy van Ypersele, 'On the Protection of Cultural Goods', Journal of International Economics 56 (2002): 359-369.
99. See, for example, Mira Burri-Nenova, 'The Long Tail of the Rainbow Serpent: New Technologies and the Protec- tion and Promotion of Traditional Cultural Expressions', in Intellectual Property and Traditional Cultural Expressions in a Digital Environment, ed. Christoph Beat Graber & Mira Burri-Nenova (Cheltenham, UK: Edward Elgar, 2008), 205-236.
100. David Weinberger, Everything Is Miscellaneous: The Power of the New Digital Disorder (New York: Henry Holt, 2007).
101. Here we refer basically to the so-called 'long tail' theory. The name has to do with the image of a demand curve that gets longer and longer and covers more niche 'non-hit' products. The 'long tail' theory was coined by Chris Anderson, chief editor of the Wired Magazine (see Chris Anderson, The Long Tail: Why the Future of Business Is Selling Less of More (New York: Hyperion, 2006)) but builds upon substantiated previous and parallel economic research. See in particular Erik Bryn- jolfsson, Yu Hu & Michael D. Smith, 'From Niches to Riches: The Anatomy of the Long Tail', Sloan Management Review 47, no. 4 (2006): 67-71; Erik Brynjolfsson, Yu Hu & Duncan Simester, 'Goodbye Pareto Principle, Hello Long Tail: The Effect of Search Costs on the Concentration of Product Sales', MIT Center for Digital Business Research Paper, (2007).
102. This may also be true for offering products in diverse languages. Although most websites are still in English, it is a fact that as the Internet becomes ubiquitous, people around the world prefer to read their news, stories and local gossip in their own language. The free online encyclopaedia Wikipedia, for instance, while having the greatest number of articles in English (2,908,572), exists also in 265 other languages. See http://meta.wikimedia.org/wiki/List_of_Wikipedias (last accessed 10 Jun. 2009).
103. 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', ERA-FORUM 6, no. 1 (2005): 109-130, 116.
104. 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 twenty 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 1,000 titles. Moreover, one should note that these are contradistinctions relating to only one particular distribu- tion channel, while in the reality of the digital environment, these are multiple and simultaneously accessible.
105. Also called 'wisdom of the crowds'. See James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, and Nations (New York: Anchor, 2003).
106. See Brynjolfsson et al., 2006, supra n. 93.
107. This is likely to become more pronounced and induce even more radical changes in the business models of content providers, distributors and advertisers, continuously fragmenting the media environment. See John Naughton, 'Our Changing Media Ecosystem', in Communications: The Next Decade, ed. Ed Richards et al. (London: Ofcom, 2006), 41-50. 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 Art. 25(a) of the TV Without Frontiers Directive, Final Report prepared for DG Information Society, 24 May 2005, at s. 3.5.1.
108. Erik Brynjolfsson, Yu Hu & Michael D. Smith, 'Consumer Surplus in the Digital Economy: Estimating the Value of Increased Product Variety at Online Booksellers', MIT Sloan Working Paper No. 4305 (2003).
109. Edwin Horlings et al., Contribution to Impact Assessment of the Revision of the Television without Frontiers Directive, (Cambridge, UK: RAND Europe, 2005), 66.
110. A 2007 OECD Report summarizes these effects stating that, '[t]he Internet as a new creative outlet has altered the economics of information production and led to the democratisation of media production and changes in the nature of communication and social relationships [...]. Changes in the way users produce, distribute, access and re-use informa- tion, knowledge and entertainment potentially give rise to increased user autonomy, increased participation and increased diversity. These may result in lower entry barriers, distribution costs and user costs and greater diversity of works as digital shelf space is almost limitless'. See OECD, Participative Web: User-Created Content, DSTI/ICCP/IE(2006)7/FINAL, 12 Apr. 2007, 5.
111. Ellen P. Goodman, 'Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets', Berkeley Technology Law Journal (2004): 1389-1472, 1395-1399. For case studies, see also, News and Informa- tion as Digital Media Come of Age, Report of the Berkman Center for Internet and Society at Harvard University, 18 Dec. 2008.
112. For a specific analysis of UCC in virtual worlds, see Mira Burri-Nenova, 'User Created Content in Virtual Worlds and Cultural Diversity', in Governance of Digital Game Environments and Cultural Diversity, ed. Christoph Beat Graber & Mira Burri-Nenova (Cheltenham, UK: Edward Elgar, 2010), 74-112.
113. For a critical opinion, see Andrew Keen, The Cult of the Amateur: How Today's Internet Is Killing Our Culture (New York: Doubleday, 2007).
114. Digitization, both as a tool of expression and as a new cultural communication space 'affects the entire spec- trum of culture production, distribution and presentation [...] [and] brings with it the promise of cultural renewal'. See Netherlands Council for Culture, From ICT to E-Culture: Advisory Report on the Digitalisation of Culture and the Implications for Cultural Policy, submitted to the State Secretary for Education, Culture and Science, June 2003 (English edition, August 2004), 8. See also, PEW Internet and American Life Project, Artists, Musicians and the Internet, December 2004; Tom O'Regan & Ben Goldsmith, 'Emerging Global Ecologies of Production', in The New Media Book, ed. Dan Harries (London: British Film Institute Publishing), 92-105.
115. For a more detailed analysis, see Mira Burri-Nenova, 'The Changing Environment of Audiovisual Media: New Technologies, New Patterns of Consumer/Business Behaviour and Their Implications for Audiovisual Media Regulation', Medialex 4 (2007): 171-177.
116. 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 (Cambridge, MA: MIT Press, 2007).
117. Baker, supra n. 72, 121.
118. Such as the EC TV quotas for European content, as we have argued elsewhere. See Mira Burri- Nenova, 'The New Audiovisual Media Services Directive: Television without Frontiers, Television without Cultural Diversity', Common Market Law Review 44, no. 6 (2007): 1689-1725.
119. In the sense of supporting a political regime as in China. See Deibert et al., supra n. 108.
120. Marshall Van Alstyne & Erik Brynjolfsson, 'Global Village or Cyber-Balkans? Modeling and Measuring the Integration of Electronic Communities', Management Science 51 (2004): 851-868.
121. See, for example, Enyinna S. Nwauche, 'African Countries' Access to Knowledge and the WIPO Digital Treaties', The Journal of World Intellectual Property 8, no. 3 (2005): 361-382.
122. 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., supra n. 101, 6.
123. For some suggestions, see Burri-Nenova, supra n. 107, 176-177.
124. Recital 17 of the UNESCO Convention's preamble.
125. 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: (1) 'copyright and related (or neighbouring) rights' for literary and artistic works and (2) '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.
126. As the US Constitution (at Art. I, s. 8, para. 8) beautifully puts it: '[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries'.
127. Rosemary J. Coombe, Steven Schnoor & Mohsen Ahmed, 'Bearing Cultural Distinction: Informational Capitalism and New Expectations for Intellectual Property', UC Davis Law Review 40 (2007): 891-917, 916, referring also to Wend B. Wendland, 'Intellectual Property and the Protection of Cultural Expressions: The World of the World Intellectual Property Organization', in Intellectual Property Law 2002, ed. F. Willem Grosheide & Jan J. Brinkof (Antwerp: Intersentia,2003), 101, 103.
128. Raymond Shih Ray Ku, 'Promoting Diverse Cultural Expression: Lessons from the US Copyright Wars', Asian Journal of WTO and International Health Law and Policy (AJWH) 2 (2007): 369-398, 376.
129. As Tomer Broude has observed, '... intellectual property rights influence cultural change or stability in a number of ways. On one hand, they provide simplified channels of communication in the form of protected inventions, creative content, brands, titles, etc., which make the diffusion of knowledge more efficient. Such simplification is particularly necessary in cross-cultural exchanges, in which the heterophily of participants is increased due to cultural differences. In this respect, intellectual property rights may be expected to facilitate cultural exchange and indeed change. On the other hand, the exclusivity of intellectual property rights may raise the diffusion costs of new knowledge, hampering cultural exchange or permitting it to occur only in knowledge areas in which the rights' holders consider the exchange to be cost-effective, thus making it contingent on their particular interests. Cultural shifts might then be restrained, having lower impact on the knowledge-receiving society. For the same reasons, intellectual property protection may also have a preserving effect on a knowledge-supplying society, if rights are used to protect cultural practices from dilution and abuse through duplication and diffusion'. See Tomer Broude, 'Conflict and Complementarity in Trade, Cultural Diversity and Intellectual Property Rights', Asian Journal of WTO and International Health Law and Policy (AJWH) 2 (2007): 346-368, 355-356.
130. See, for example, Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2003); Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (London: Penguin, 2008).
131. See Graber & Burri-Nenova, supra n. 91, in particular the contributions by Fiona Macmillan, Wend B. Wendland, Christoph Beat Graber & Mira Burri-Nenova.
132. Ku, supra n. 120, 377, referring also to Neil W. Netanel, 'Market Hierarchy and Copyright in Our System of Free Expression', Vanderbilt Law Review 53, no. 6 (2000): 1879-1932, 1889.
133. Ku, supra n. 120.
134. As commercial enterprises, the pursuit of a maximization of profits and a minimization of financial risks has been a primary goal of these media companies. They have striven to offer a constant flow of hits and this has resulted also in much 'imitation, blandness and the recycling of those genres, themes and approaches regarded as profitable'. See Denis McQuail, 'Commercialisation and Beyond', in Media Policy: Convergence, Concentration and Commerce, ed. Denis McQuail & Karen Siune (London: Sage, 1998), 107-127, 119-120; Laurie Ouilette & Justin Lewis, 'Moving Beyond the "Vast Wasteland": Cultural Policy and Television in the United States', Television and New Media 1, no. 1 (2000): 95-115, 96. See also, Frank Webster, Theories of the Information Society (London: Routledge, 1995), 22.
135. See, for example, Committee on Economic, Social and Cultural Rights, General Comment No. 17: The Right of Everyone to Benefit from the Protection of the Moral and Material Interests Resulting from Any Scientific, Literary or Artistic Production of which he is the Author (Art. 15(1)(c)), UN Doc. E/C.12/2005, 21 Nov. 2005, at para. 35. See also, Michael D. Birnhack, 'Global Copyright, Local Speech', Cardozo Arts and Entertainment Law Journal 24 (2006): 491-547.
136. See Julie E. Cohen, 'Creativity and Culture in Copyright Theory', UC Davis Law Review 40 (2007): 1151-1205, 1193-1194; Julie E. Cohen, 'The Place of the User in Copyright Law', Fordham Law Review 74 (2005): 347-374; Siva Vaid- hyanathan, 'The Googlization of Everything and the Future of Copyright', UC Davis Law Review 40 (2007): 1207-1231.
137. Julie E. Cohen, 'Pervasively Distributed Copyright Enforcement', Georgetown Law Journal 95 (2006): 1-48.
138. Lawrence Lessig, '(Re)creativity: How Creativity Lives', in Copyright and Other Fairy Tales: Hans Christian and the Commodification of Creativity, ed. Helle Posrdam (Cheltenham, UK: Edward Elgar, 2006), 15-22, 19.
139. DRM have been aimed at protecting digital content from uncontrolled distribution and unlawful use but have also had pernicious effects, eroding some fundamental rights of consumers and restricting usages, traditionally allowed under copyright. See, for example, Nicola Lucchi, 'Countering the Unfair Play of DRM Technologies', Texas Intellectual Property Law Journal 16, no. 1 (2007): 91-124.
140. 'In other words, the middlemen of old are using copyright to preserve their status in a world in which many of these middlemen are not only unnecessary but also stifle an environment for creating, producing, and disseminating diverse cultural expression.' See Ku, supra n. 120, 372. See also, Raymond Shih Ray Ku, 'The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology', University of Chicago Law Review 69, no. 1 (2002): 263-324, 301 and William Patry, Moral Panics and the Copyright Wars (Oxford: Oxford University Press, 2009).
141. As Netanel notes, 'one of the disadvantages of legal regimes that allow firms to earn supracompetitive profits is that they provide a strong incentive for socially wasteful spending on lobbying and litigation to maintain those rents'. See Neil W. Netanel, 'Why Has Copyright Expanded? Analysis and Critique', in New Directions in Copyright Law: Vol. 6, ed. Fiona Macmillan (Cheltenham, UK: Edward Elgar, 2008), 3-34, 4, referring to Fred S. McChesney, 'Rent Extraction and Rent Creation in the Economic Theory of Regulation', Journal of Legal Studies 16, no. 1 (1987): 101-114; Richard A. Posner, 'The Social Costs of Monopoly and Regulation', Journal of Political Economy 83, no. 4 (1975): 807-828.
142. Netanel, ibid.
143. Birnhack, supra n. 127, 493.
144. Birnhack, ibid., 492-493, referring to Pierre Bourdieu, The Field of Cultural Production (New York: Columbia University Press, 1993).
145. Rosemary J. Coombe, 'Protecting Cultural Industries to Promote Cultural Diversity: Dilemma for International Policy-Making Posed by the Recognition of Traditional Knowledge', in International Public Goods and Transfer of Technology under a Globalized Property Regime, ed. Keith E. Maskus & Jerome H. Reichman (Cambridge: Cambridge University Press, 2005), 559-614, 613.
146. 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.
147. WIPO Doc. A/43/16, at Annex A.
148. Neil W. Netanel, 'The WIPO Development Agenda and Its Development Policy Context', in The Development Agenda: Global Intellectual Property and Developing Countries, ed. Neil W. Netanel (Oxford: Oxford University Press, 2009), 1-32, 2.
149. 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 Jul. 2006, at para. 493.
150. In 1961, the United States requested the establishment of a Working Party to examine the application of GATT 1947 to television programmes. The United States argued that TV programmes are goods under GATT 1947 but do not fall under Art. IV, which covers only 'cinematograph films'. The United States 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 Nov. 1961; GATT, Application of GATT to International Trade in Television Programmes: Proposal by the Government of the United States, L/2120, 18 Mar. 1964.
151. WTO, Communication from the European Communities and their Member States: Electronic Commerce Work Programme, S/C/W/183, 30 Nov. 2000, at para. 6(a).
152. 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 Feb. 1999.
153. Although the US - Gambling rulings have confirmed that WTO rules are applicable to electronically supplied services. See WTO Panel Report, United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services (US - Gambling), WT/S285/R, adopted 10 Nov. 2004, confirmed by Appellate Body Report, WT/DS285/AB/R, adopted 7 Apr. 2005. See also, Sacha Wunsch-Vincent, 'The Digital Trade Agenda of the US: Parallel Tracks of Bilateral, Regional and Multilateral Liberalization', Aussenwirtschaft 1 (2003): 7-46; Wunsch-Vincent, supra n. 64.
154. In the broader context of digital trade, next to these classification uncertainties, there are a number of other unresolved issues. There is for instance no clear confirmation on the application of Art. VI GATS on domestic regulation, no determination of 'likeness' for application of MFN and national treatment commitments, which puts technological neu- trality on shaky ground, and no assertion so far as to whether electronically traded services fall under mode 1 or mode 2. For a comprehensive analysis, see Sacha Wunsch-Vincent, 'Trade Rules for the Digital Age', in GATS and the Regulation of International Trade in Services, ed. Marion Panizzon, Nicole Pohl & Pierre Sauvé (Cambridge: Cambridge University Press, 2008), 497-529, 501-505.
155. For some suggestions, see Catherine L. Mann & Sarah Cleeland Knight, 'Electronic Commerce in the WTO', in The WTO after Seattle, ed. Jeffrey J. Schott (Washington, DC: Institute for International Economics, 2000), 253-268, 259; Wunsch-Vincent, supra n. 64, 78-79; Tania Voon, 'A New Approach to Audiovisual Products in the WTO: Rebalancing GATT and GATS', UCLA Entertainment Law Review 14, no. 1 (2007): 1-32, 17-26.
156. On the digital trade agenda, its aims and approaches, see Wunsch-Vincent, supra n. 146, 11-12 in particular.
157. 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.
158. For a detailed discussion of the US-Singapore and the US-Chile FTAs, see Wunsch-Vincent, supra n. 146, 28-35. See also, Martin Roy, Juan Marchetti & Hoe Lim, '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), 1-63, 38-40 (published in an updated version in GATS and the Regulation of International Trade in Services, ed. Marion Panizzon, Nicole Pohl & Pierre Sauvé (Cambridge: Cambridge University Press, 2008), 77-110).
159. For an analysis of these rules in selected FTAs, see Wunsch-Vincent, supra n. 146, 516-523.
160. Wunsch-Vincent, supra n. 146, 15-16. See also, Voon, supra n. 147, 25-26.
161. Bernier, supra n. 64, 15. Australia, as the most affluent of these states, managed to preserve existing quotas for commercial television and commercial radio. Singapore and Chile were also able to include relatively significant reservations, as did Costa Rica, the Dominican Republic and Morocco. On the other hand, Guatemala, Honduras, El Salvador and Nicaragua left their audiovisual sectors in practice open to imports. See Bernier, supra n. 64, 11-12.
162. Craufurd Smith, supra n. 5, 49.
163. Article 3(i)(1) AVMS (emphasis added). Such promotion could relate, inter alia, to the financial contribution to the production and rights acquisition of European works or to the share and/or prominence of European works in the catalogue of programmes. Member States are to report every four years on the implementation of this provision, with a sub- sequent reporting obligation of the Commission to the Parliament and the Council, which should take into consideration the market, technological developments and the objective of cultural diversity. See Arts 3(i)(2) and 3(i)(3) AVMS.
164. For example, see EC-Chile Association Agreement (signed 3 Oct. 2002), at Part IV 'Trade and Trade-related Matters'.
165. See supra n. 156, Part III, Title II 'Culture, Education and Audio-visual', at Arts 38-40. For a relevant analysis of the Cariforum-EU Economic Partnership Agreement, see Nurse, supra n. 19, 16-23.
166. Wouters & De Meester, supra n. 12, 218.
167. In the context of UNESCO, it was only in the 1990s that the organization took a concrete interest in protecting cultural diversity from the alleged negative effects of international trade and economic globalization. Key steps in this process were the publication of the seminal report 'Our Creative Diversity' by the World Commission on Culture and Development in 1995 and the 1998 Stockholm Conference on Cultural Policies for Development. For a detailed account, see Bernier, supra n. 4 and Bruner, supra n. 12, 378-383.
168. The European industries were also to a substantial degree destroyed by the wars. At the same time, Hollywood was flourishing and its productions, whose access to Europe was constrained during the war, flooded the market after it ended. See Bruner, supra n. 12, 367, referring to Hernan Galperin, 'Cultural Industries in the Age of Free-Trade Agree- ments', Canadian Journal of Communication 24, no. 1 (1999): 49-77, 68. See also, John Trumpbour, Selling Hollywood to the World: US and European Struggles for Mastery of the Global Film Industry, 1920-1950 (Cambridge: Cambridge University Press, 2007).
169. Article XI GATT.
170. Article IV GATT covers 'internal quantitative regulations relating to exposed cinematograph films', which must take the form of 'screen quotas' conforming to certain requirements (Art. IV, paras (a)-(d)). Such quotas 'may require the exhibition of cinematograph films of national origin during a specified minimum proportion of the total screen time actu- ally utilized' (Art. 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' (Art. IV(c) GATT). On Art. IV GATT, see Rostam J. Neuwirth, 'The Cultural Industries and the Legacy of Art. 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 Nov. 2002). On the most infamous South-Korean screen quota system, see Won-Mog Choi, 'Screen Quota and Cultural Diversity: Debates in Korea-US FTA Talks and Convention on Cultural Diversity', Asian Journal of WTO & International Health Law and Policy (AJWH) 2, no. 2 (2007): 267-286.
171. The law of the WTO is contained in several agreements, attached as annexes to the WTO Agreement that encompass the General Agreement on Tariffs and Trade (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 Agree- ments. 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).
172. For an overview of all relevant provisions, see Christoph Beat Graber, 'Audiovisual Media and the Law of the WTO', in Free Trade versus Cultural Diversity: WTO Negotiations in the Field of Audiovisual Services, ed. Christoph Beat Graber, Michael Girsberger & Mira Nenova (Zurich: Schulthess, 2004), 47-56.
173. Graber, supra n. 8, 555 and 569.
174. See, for example, Sandrine Cahn & Daniel Schimmel, 'The Cultural Exception: Does It Exist in GATT and GATS Frameworks? How Does It Affect or Is It Affected by the Agreement on TRIPS?', Cardozo Arts and Entertainment Law Journal 15 (1997): 281-314, 287-289.
175. See, for example, GATT, EEC - Directive on Transfrontier Television: Response to Request for Consultations under Article XXVII:I by the United States, DS4/4, 8 Nov. 1989. Later WTO cases worth mentioning are WTO, Turkey - Taxation of Foreign Film Revenues: Request for Consultations by the United States, WT/DS43/1, 17 Jun. 1996; WTO, Turkey - Taxation of Foreign Film Revenues: Request for Establishment of a Panel by the United States, WT/DS43/2, 10 Jan. 1997; and Canada - Periodicals, supra n. 50. For an overview, see Hahn, supra n. 12, 528-530.
176. See Christoph Beat Graber, 'Audio-visual Policy: The Stumbling Block of Trade Liberalisation', in The WTO and Global Convergence in Telecommunications and Audiovisual Services, ed. Damien Geradin & David Luff (Cambridge: Cambridge University Press, 2004), 165-214; Roy, supra n. 83.
177. See Bruner, supra n. 12, 374; Galt, supra n. 10, 914; Cahn & Schimmel, supra n. 166, 291-301.
178. 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.'
179. The GATS Annex on Art. II Exemptions states (at para. 6) that, '[i]n principle, such exemptions [to MFN] should not exceed a period of 10 years. In any event, they shall be subject to negotiation in subsequent trade liberalizing rounds'. The exemptions made should have thus theoretically expired in 2005.
180. See supra n. 51.
181. Canada-US Free Trade Agreement, 22 Dec. 1987-2 Jan. 1988, 27 ILM 281 (1988).
182. In CUSFTA, the culture exception was coupled with a retaliation provision. Article 2005 CUSFTA provides that, '[c]ultural industries are exempt from the provisions of this Agreement', but also that either party could 'take measures of equivalent commercial effect in response to [such] actions'. The North American Free Trade Agreement (NAFTA; 17 Dec. 1992, 32 ILM 289 (1993)) incorporated by reference to CUSFTA this cultural exception. It exists only between Canada and both the United States and Mexico, but not between the United States and Mexico. In practice, this provision offering comfort to the Canadian cultural sector had little effect. See Cahn & Schimmel, supra n. 166, 30.
183. See Art. XX(b) GATT and Art. XIV(b) GATS with regard to measures 'necessary to protect human, animal or plant life or health', and Art. XX(g) GATT with regard to measures 'relating to the conservation of exhaustible natural resources'.
184. 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 envi- ronment'. See WTO Appellate Body Report, US - Shrimp, supra n. 54, para. 17. See also, paras 129-131, 152 and 155.
185. If the decision is of a 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 Art. X(4) WTO Agreement.
186. Graber, supra n. 8, 572.
187. Laura Gomez Bustos & 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 to an End', University of Barcelona, 29-30 Jan. 2007, on file with the author, 50, referring to an interview with Hélène Ruiz-Fabri, UMR de Droit Comparé, Paris, 12 Jun. 2006.
188. '... the foundational concepts of trade regulation, intellectual property protection and cultural diversity are so far removed from each other, in their perceptions of basic ideas such as culture, markets and rights, that substantive conflict is inevitable, if not upon the surface, then at a deeper level. That in the exceptional circumstances of overt conflict, a lawyerly solution may be found, is no remedy for the potentially disruptive - or at least non-constructive - effects of the parallel existence of such inherently different normative regulatory systems'. Broude, supra n. 121, 363.
189. Fiona Macmillan, 'Human Rights, Cultural Property and Intellectual Property: Three Concepts in Search of Relationship', in Intellectual Property and Traditional Cultural Expressions in a Digital Environment, ed. Christoph Beat Graber & Mira Burri-Nenova (Cheltenham, UK: Edward Elgar, 2008), 73-95, 90, referring also to Fiona Macmillan, 'Interna- tional Economic Law and Public International Law: Strangers in the Night', International Trade Law and Regulation 10 (2004): 115-124.
190. 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', Law and Policy in International Business 30, no. 2 (1999): 231-320.
191. For an account of the different positions, see Roy, supra n. 83, 926-928.
192. Ivan Bernier, 'Cultural Goods and Services in International Trade Law', in The Culture/Trade Quandary, ed. Dennis Browne (Ottawa: Centre for Trade Policy and Law, 1998), 147.
193. See Christoph Beat Graber, 'WTO: A Threat to European Film?', in Proceedings of the Vth Conference 'European Culture, ed. Enrique Banus (Pamplona: University of Navarra, 2000), 865-878. Graber suggests that such art house films could be differentiated, instead of using otherwise subjective qualitative assessment, by applying a quantitative criterion for film budgets of not more than USD 5 million (see Graber, supra n. 70, 332 and 336).
194. Voon, supra n. 147, 27.
195. A bold solution to the audiovisual services quandary 'outside the box' has been outlined by Tania Voon, who suggests 'a holistic approach to audiovisual products in the WTO, taking a holistic view of GATT and GATS rather than seeing them as two separate and independent agreements'. Voon argues for an overhaul of the existing minimum level of commitments and maximum level of MFN exemptions for audiovisual services. She advocates full commitments for both market access and national treatments, believing that, '[t]rade restrictions in the form of market access limitations should not be allowed on the grounds that they are necessary to preserve or promote culture'. Considering the radical nature of this proposal, Voon reflects upon possible 'escape routes' for Members. In this context, she sees a necessity for new rules on subsidies, on preferential treatment of developing countries and redesigning the screen quota rule (in the sense of agreeing that a measure that complies with Art. IV GATT would not be regarded as violating GATS and introducing similar rules for radio and television broadcasting). See Voon, supra n. 147, 20-26.
196. Craufurd Smith notes in this context: '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, supra n. 5, 53-54 (footnote omitted).
197. For instance, Brazil, Japan and India have all ratified the Convention but remain equally willing to engage in further liberalization of the audiovisual sector. For a detailed account, see Pauwels et al., supra n. 61.
198. 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 Harmonised System - Amendments and Their Impact on WTO Members' Schedules', WTO Economic Research and Statistics Division Staff Working Paper No. 2 (2008), 1-23.
199. See supra n. 81.
200. UN Provisional Central Product Classification (CPC), UN Statistical Papers, Series M, No. 77, Ver.1.1, E.91. XVII.7, 1991.
201. For details on audiovisual services, see Roy, supra n. 83, 947-949; for telecommunications services, see BurriNenova, supra n. 81.
202. The need for careful scheduling has been stressed by the US - Gambling rulings (supra n. 145). This may also have a chilling effect as Members will be particularly careful about accepting 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', World Trade Review 5 (2006): 319-355, 324) and 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', Legal Issues of Economic Integration 32, no. 4 (2005): 417-447, 427).
203. Roy, supra n. 83, 947.
204. Wunsch-Vincent, supra n. 146, 25.
205. Wunsch-Vincent, supra n. 64, 71.
206. 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). The new versions of the CPC contain a number of previously non-existent information technology services. See Wunsch- Vincent, supra n. 146, 502.
207. Pierre Sauvé, 'Completing the GATS Framework: Addressing Uruguay Round Leftovers', Aussenwirtschaft 3 (2002): 301-341, 302.
208. Ibid., 302-303.
209. For an analysis of these undertakings, see Sauvé, supra n. 199, as well as Pierre Sauvé, 'Been There, Not Yet Done That: Lessons and Challenges in Services Trade', in GATS and the Regulation of International Trade in Services, ed. Marion Panizzon, Nicole Pohl & Pierre Sauvé (Cambridge: Cambridge University Press, 2008), 599-631.
210. We noted above that GATS allows substantially more flexibility than the GATT. It should however be borne in mind that if Members do make unlimited commitments under GATS, they may in fact be more restricted than under GATT since within the fairly new construct of the agreement on services no rules on subsidies, safeguards or an equivalent to GATT Art. IV for screen quotas exist. See Voon, supra n. 147, 5-6 and Sauvé, supra n. 199, 327-333.
211. Although the current GATS framework contains no specific rules on subsidies, subsidies are not excluded from GATS' scope of application. As 'measures by Members affecting trade in services' within the meaning of Art. I:1, subsidies are fully covered by the provisions of the GATS. There are a number of GATS provisions that restrict governments' ability to provide services subsidies or to offer a remedy to those Members harmed by their negative effects. See Pietro Poretti, 'Waiting for Godot: Subsidy Disciplines in Services Trade', in GATS and the Regulation of International Trade in Services, ed. Marion Panizzon, Nicole Pohl & Pierre Sauvé (Cambridge: Cambridge University Press, 2008), 466-488.
212. Sauvé, supra n. 199, 325.
213. Bernard Hoekman, 'Toward a More Balanced and Comprehensive Services Agreement', in The WTO after Seattle, ed. Jeffrey J. Schott (Washington, DC: Institute for International Economics, 2000), 119-135, 129.
214. WTO, Communication from the United States, Audiovisual and Related Services, S/CSS/W/21, 18 Dec. 2000, at para. 10(iii). The United States has already accepted some leeway for subsidies in its FTAs with Singapore and Australia.
215. Sauvé, supra n. 199, 332, referring also to Pierre Sauvé & Christopher Wilkie, 'Investment Liberalisation in GATS', in GATS 2000: New Directions in Services Trade Liberalisation, ed. Pierre Sauvé & Robert M. Stern (Washington, DC: Brookings Institution Press, 2000), 331-363.
216. Poretti, supra n. 203, 486.
217. Voon, supra n. 147, 20-24.
218. Ibid., 20.
219. WTO, Agreement on Subsidies and Countervailing Measures, at Art. 1.1(a)(i) and (ii).
220. Voon, supra n. 147, 22. Messerlin and Cocq propose a 'reference paper' on audiovisual subsidies allowing 'subsidies for cultural reasons, while banning subsidies for mere industrial reasons' (see Emmanuel Cocq & Patrick Messerlin, 'French Audio-Visual Policy: Impact and Compatibility with Trade Negotiations', Cultural Diversity and International Economic Integration: The Global Governance of the Audio-Visual Sector, ed. Paulo Guerrieri, P. Lelio Iapadre & Georg Koopmann (Cheltenham, UK: Edward Elgar, 2005), 48-49).
221. Philip Marsden, A Competition Policy for the WTO (London: Cameron May, 2003); Merit E. Janow, 'Trade and Competition Policy', in The World Trade Organization: Legal, Economic and Political Analysis, vol. 3, ed. Patrick F.J. Macrory, Arthur E. Appleton & Michael G. Plummer (New York: Springer, 2005), 487-510.
222. See Germann, supra n. 95, 111; Graber, supra n. 70, 327-328, 343.
223. WTO, Singapore Ministerial Declaration, Conf. Doc. WT/MIN(96)/DEC/W, 13 Dec. 1996. The Singapore Declaration (at para. 20) mandated the establishment of 'a working group to study issues raised by Members relating to the interaction between trade and competition policy, including anti-competitive practices, in order to identify any areas that may merit further consideration in the WTO framework'.
224. WTO, 'Doha Work Programme: Decision Adopted by the General Council on 1 Aug. 2004', WT/L/579, 2 Aug. 2004, at para. (g).
225. The Warwick Commission Report, supra n. 68, 19 and Ch. 1.
226. For a critique of the cultural exception doctrine, see Galt, supra n. 10, 915-922.
227. Article 1(g) of the UNESCO Convention.
228. Galt, supra n. 10, 933.
229. Singh, supra n. 76, 48.
230. Interestingly in this context, both the United States and Australia, presented the FTA and its rules on media as a victory to their constituents. The USTR claimed that, '[i]n broadcasting and audiovisual services, the FTA contains important and unprecedented provisions to improve market access for US films and television programs over a variety of media including cable, satellite, and the Internet' (see USTR, US-Australia Free Trade Agreement: Brief Summary of the Agreement, Fact sheet, 18 May 2004). In contrast, Australia's Department of Foreign Affairs and Trade stated that, '[t]he Government has protected our right to ensure local content on Australian media, and retains the capacity to regulate new and emerging media, including digital and interactive TV. The agreement ensures that there can be Australian voices and stories on audiovisual and broadcasting services, now and in the future' (see Department of Foreign Affairs and Trade, Australia-United States Free Trade Agreement: Key Outcomes, available at: , last accessed 10 Jun. 2009).
231. The British Broadcasting Company (BBC) has already experimented in this field. See Ofcom, A New Approach to Public Service Content in the Digital Media Age: The Potential Role of Public Service Publisher, Ofcom Discussion Paper, 24 Jan. 2007. See also, From Public Service Broadcasting to Public Service Communications, ed. Jamie Cowling & Damien Tambini (London: Institute for Public Policy Research, 2004).
232. Galt, supra n. 10, 935, meaning the United Kingdom as the new dominant voice within the EU and referring to Des Freedman, 'Trade versus Culture: An Evaluation of the Impact of Current GATS Negotiations on Audio-Visual Industries', 2002.
233. See Arts 14, 16 and 18 of the UNESCO Convention. Many developing countries have ratified the Convention in the hope that they would profit from the International Fund for Cultural Diversity, created under the UNESCO Convention (Art. 18).
234. Singh, supra n. 76, 42. See also, the data exemplifying this statement, 43-45. Though sympathetic with the goal of cultural diversity, the United Nations Conference on Trade and Development (UNCTAD) also noted that 'from the trade and development point of view, protectionism should not be encouraged in the name of culture'. See UNESCO, Preliminary Draft Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions, Presen- tation of Comments and Amendments, Part IV: Comments Proposed by the IGOs, UNESCO Doc. CLT/CPD/2004/ CONF.607/1, 14-17 Dec. 2004, 7.