Cultural protectionism 2.0: Updating cultural policy tools for the digital age

Transnational Culture in the Internet Age

Volumn , Issue , 2012, Pages 182-202

  Burri, Mira ^a  

^a UNIVERSITY OF BERN   (Switzerland)

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EID: 84881751326     PISSN: None     EISSN: None     Source Type: Book    
DOI: 10.4337/9780857931344.00014     Document Type: Chapter

References (98)

1. Danielle S. Petito, Sovereignty and Globalization: Fallacies, Truth, and Perception, 17 N.Y.L. Sch. J. Hum. Rts. 1139 (2001).
2. UNESCO, Convention on the Protection and Promotion of Diversity in Cultural Expressions, art. 1 (g), Oct. 20, 2005http://www.unesco.org/ new/en/culture/themes/cultural-diversity/2005-convention
3. Thomas Cottier, Multilayered Governance, Pluralism, and Moral Conflict, 16 Ind. J. Global Legal Stud. 647 (2009).
4. The idea that some measures protecting national cultural industries may be justified found reflection also in bilateral and regional fora. In 1988, the cultural proponents celebrated a victory when Canadian negotiators introduced a "cultural exclusion" clause in the Canada-United States Free Trade Agreement, Oct. 4, 1988, 27 I.L.M. 281 (hereinafter CUSFTA). Five years later, such an exclusion also found its way into the North American Free Trade Agreement, whichincorporated by reference CUSFTA in Annex 2106. However, this cultural exception was coupled with a retaliation provision that limited by design its practical use. North American Free Trade Agreement, Dec. 17, 1992, Can.-Mex.-U.S., 32 I.L.M. 289 (1993)
5. The law of the WTO is contained in several agreements, attached as annexes to the Agreement Establishing the World Trade Organization, 1994, 1867 U.N.T.S. 154 (hereinafter WTO Agreement) that encompass the General Agreement on Tariff s and Trade 1994, Apr. 15, 1994, 1867 U.N.T.S. 187 (hereinafter GATT), the General Agreement on Trade in Services, Apr. 15, 1994, 1869 U.N.T.S. 183 (hereinafter GATS) and the Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1869 U.N.T.S. 299 (hereinafter TRIPS). I refer to these collectively as the WTO Agreements.1994
6. Pursuant to the WTO Services Sectoral Classification List, audiovisual services encompass: motion picture and video tape production and distribution services
7. Motion picture projection services; radio and television services; radio and television transmission services; sound recording and others. WTO Services Sectoral Classification List, WTO Doc.MTN.GNS/W/120, July 10 1991.
8. Diff erent types of support mechanisms were used in diff erent states. Commonly, these included subsidies; domestic content rules; market access restrictions, in particular measures that control access to film markets; regulatory/ licensing restrictions, especially measures that control access to radio or television broadcasting; tax measures; foreign investment and ownership measures; border measures; and film co-production agreements. For a taxonomy, see Mary E. Footer and Christoph Beat Graber, Trade Liberalisation and Cultural Policy, 3 J. of Int l Econ. L. 115, 122-26 (2000).
9. While no services sector was excluded from the scope of GATS.
10. In contrast to the GATT, where obligations regarding national treatment and quantitative restrictions apply across the board, under the GATS states can choose the services sectors and subsectors in which they are willing to make market access or national treatment commitments (arts XVI and XVII GATS respectively), and can define the modalities of these commitments. Even the mostfavoured-nation (MFN) obligation, which is fundamental to the entire trade system, can be subject to constrictions in the framework of GATS (art. II:2 and Annex on Article II Exemptions).
11. Almost all members, with the notable exception of the US, Japan and New Zealand, have been reluctant to commit and have listed significant MFN exemptions. See Martin Roy, Audiovisual Services in the Doha Round: Dialogue de Sourds, The Sequel 6 J. World Investment & Trade 923-941 (2005
12. Frederick S. Galt, The Life, Death, and Rebirth of the "Cultural Exception" In the Multilateral Trading System: An Evolutionary Analysis of Cultural Protection and Intervention in the Face of American Pop Culture s Hegemony, 3 Wash. U. Glob. Stud. L. Rev. 909-914 (2004).
13. Sacha Wunsch-Vincent, The WTO, the Internet and Trade in Digital Products 201-32 (2006).
14. Ivan Bernier, The Recent Free Trade Agreements of the United States as Illustration of Their New Strategy Regarding the Audiovisual Sector, occasional paper, April 2004, http://www.coalitionsuisse.ch/doss_sc/unesco_ccd/ bernier_us_ftas_and_av_sector1.pdf
15. Jagdish N. Bhagwati, Termites in the Trading System (2008).
16. Only Israel and the US voted against the Convention and four states (Australia, Honduras, Nicaragua and Liberia) abstained. As of May 26 2011, 117 countries have ratified the Convention. Unesco, http://portal.unesco.org/la/con vention.aspKO=31038language=E
17. Keith Acheson and Christopher Maule, Convention on Cultural Diversity, 28 J. Cult. Econ. 243 (2004)
18. Mira Burri, Cultural Diversityas a Concept of Global Law: Origins, Evolution and Prospects, 2 Diversity 1059 (2010).
19. Mira Burri, Mapping the Fragmented Matrix of Trade, Culture and Intellectual Property in Global Law, paper presented at the Law and Society Annual Meeting, 2-5 June 2011
20. Laurence R. Helfer & Graeme W. Austin, Intellectual Property and Human Rights: Mapping the Global Interface (2011).
21. Rachael Craufurd Smith, The UNESCO Convention on the Protection and Promotion of Cultural Expressions: Building a New World Information and Communication Order, 1 Int l J. of Comm. 24, 30-32 (2007
22. Caroline Pauwels, Jan Loisen and Karen Donders, Culture Incorporated; or Trade Revisited How the Position of Diff erent Countries Aff ects 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, 125 (Nina Obuljen and Joost Smiers eds, 2006).
23. Mira Burri-Nenova, Trade and Culture in International Law: Paths to (Re)conciliation, 44 J. World Trade 49 (2010).
24. European Parliament, The Implementation of the UNESCO Convention into EU s Internal Policies, Briefing Note, IP/B/CULT/IC/2010_066 (May 14, 2010), available at http://www.europarl.europa.eu/activities/committees/studies/ download.do language=enfile=31355
25. Pierre Sauvé & Karsten Steinfatt, Towards Multilateral Rules on Trade and Culture: Protective Regulation or Efficient Protection, Achieving Better Regulation of Services 323-46 (Productivity Commission & Australian National University, 2000)
26. Ian Slotin, Free Speech and the Visage Culturel: Canadian and American Perspectives on Pop Culture Discrimination, 111 Yale L.J. 2289 (2000)
27. Sean Pager, Beyond Culture vs. Commerce: Decentralizing Cultural Production to Promote Diversity through Trade, 31 Nw. J. Int l L. & Bus. 63 (2011).
28. Christoph Beat Graber, Handel und Kultur im Audiovisionsrecht der WTO (2003).
29. J.P. Singh, Culture or Commerce A Comparative Assessment of International Interactions and Developing Countries at UNESCO, WTO, and Beyond, 8 Int l Studies Perspectives 36 (2007).
30. See Antony Giddens, Runaway World: How Globalisation Is Reshaping Our Lives (2002)
31. Tyler Cowen, Creative Destruction: How Globalization Is Changing the World s Cultures 146 (2002)
32. Tyler Cowen, In Praise of Commercial Culture 15-43 (1998).
33. Christopher M. Bruner, Culture, Sovereignty, and Hollywood: UNESCO and the Future of Trade in Cultural Products, 40 Int l L. & Pol. 351 (2008)
34. Madhavi Sunder, Cultural Dissent, 54 Stan. L. Rev. 495 (2001).
35. Himani Bannerji, The Paradox of Diversity: The Construction of a Multicultural Canada and Women of Color , 23 Women s Studies Int l Forum 537 (2000).
36. Jon Garon s Chapter 15 in this volume.
37. Marcelino Oreja, The Digital Age European Audiovisual Policy. Report from the High Level Group on Audiovisual Policy 1998).
38. Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the Coordination of Certain Provisions Laid Down by Law,Regulation or Administrative Action in Member States Concerning the Provision of Audiovisual Media Services 2010 O.J. (L 95/1) (hereinafter AVMS).
39. Comparative Study on the Impact of Control Measures on the Televisual Advertising Markets in European Union Member States and Certain Other Countries 60-61 (2005).
40. The Commission Proposal for a Modernisation of the Television without Frontiers Directive, MEMO/05/475 (Dec. 13, 2005).
41. Sophie de Vinck and Caroline Pauwels, Cultural Diversity as the Final Outcome of EU Policymaking in the Audiovisual Sector: A Critical Analysis, in Protection of Cultural Diversity from a European and International Perspective 263, 304 (Hildegard Schneider and Peter van den Bossche eds, 2008).
42. World Trade Organization, Communication from the United States: Audiovisual and Related Services, S/CSS/W/21 (Dec. 18, 2000).
43. Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom 2 (2006).
44. See Chris Anderson, The Long Tail: Why the Future of Business Is Selling Less of More (2006)
45. A view shared also by Philip Napoli
46. see Napoli s Chapter 8 in this volume.
47. Mónica Ariño, The Regulation of Audiovisual Content in the Era of Digital Convergence, 7 J. UOC s L. and Pol. Sci. 3 (2008).
48. On-demand or non-linear services are off ers 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." AVMS art. 1(g).
49. "European work" is by definition content produced with European money without any particular requirements regarding quality, exclusivity, originality or cultural distinctness. For a critique, see Mira Burri-Nenova, The New Audiovisual Media Services Directive: Television without Frontiers, Television without Cultural Diversity, 44 C.M.L. Rev. 1689, 1705-10
50. AVMS art. 13(1).
51. Natali Helberger, The Media-Literate Viewer, in Dommering-bundel: Opstellen over informatierecht aangeboden aan prof. mr. E.J. Dommering 135-48 (N.A.N.M. van Eijk and P.B. Hugenholtz eds, 2008).
52. See Philip M. Napoli, Audience Evolution: New Technologies and the Transformation of Media Audiences (2010)
53. Axel Bruns, Blogs,Wikipedia, Second Life, and Beyond
54. From Production to Produsage (2010).
55. Organisation for Economic Co-operation and Development (OECD), Participative Web: User-Created Content, at 5, DSTI/ICCP/IE(2006)7/FINAL (Apr. 12 2007
56. Ellen P. Goodman, Media Policy Out of the Box: Content Abundance, Attention Scarcity, and the Failures of Digital Markets, 19 1395-99 (2004).
57. Philip M. Napoli, Chapter 8 in this volume.
58. Andrew Keen, The Cult of the Amateur: How Today s Internet Is Killing Our Culture (2007).
59. Matthew Hindman, The Myth of Digital Democracy (2008).
60. "Why is this important for cultural policy Amateur content is typically very localized and often small-scale: for example, blogs address issues of niche and geographic interest, and by definition are not mainstream media sources. Amateur content is about having a local voice, reflecting the needs and interests of a local audience. The local scale of amateur content is, or should be, extremely important to the large range of countries (and smaller geographic entities like states and provinces) that are not commercial exporters of content. Obviously, in a competition over who is more likely to produce material that reflects the national culture, and appeals to the people of, say, Malta, Hollywood executives are going to be less interested than Maltese amateur content producers. Therefore national regulators, who want to produce a vibrant corpus of material that is directed to the ethnic and cultural needs of their people, are much better off encouraging the amateur content producers within their country by intelligent use of their cultural policy". John Quiggin and Dan Hunter, Money Ruins Everything, 30 Hastings Comm. & Ent. L.J. 203, 252-54 (2008).
61. Natali Helberger, Andra Leurdjik and Silvain de Munck, User Generated Diversity: Some Reflections on How to Improve the Quality of Amateur Productions, 77 Comm. & Strategies 55 (2010).
62. Office of Communications (Ofcom), Ofcom s Second Public Service Broadcasting Review Phase One: The Digital Opportunity, at 1.23 (2008)
63. Tim Gardam & David A. Levy, The Price of Plurality: Choice, Diversity and Broadcasting Institutions in the Digital Age 125-51 (2008).
64. A French tax scheme enables video game manufacturers subject to taxation in France to deduct up to 20 per cent of the production costs of certain games. The scheme is based on a points system that determines the cultural content of a game pursuant to criteria such as language, levels of artistic expenditure, links to European historical, artistic or scientific heritage. The case was controversial as to its compatibility under EU state aid law. See Commission Decision of 11 December 2007 on State Aid C 47/06 Tax credit introduced by France for the creation of video games, 2008 O.J.
65. Mira Burri-Nenova, User Created Content in Virtual Worlds and Cultural Diversity, in Governance of Digital Game Environments and Cultural Diversity: Transdisciplinary Enquiries 74-112 (Christoph Beat Graber and Mira Burri-Nenova eds, 2010).
66. Benedetta Brevini, Towards PSB 2.0 Applying PSB Ethos to Online Media in Europe, 25 Eur. J. of Comm. 348 (2010).
67. Ofcom, A New Approach to Public Service Content in the Digital Media Age: The Potential Role of Public Service Publisher (2007)
68. Jamie Cowling and Damien Tambini, From Public Service Broadcasting to Public Service Communications (2004).
69. Chris Tryhorn, Ofcom Scraps "Public Service Publisher," The Guardian, 12 March 2008 (quoting Ofcom Chief Executive Ed Richards)http:// www.guardian.co.uk/media/2008/mar/12/ofcom.digitalmedia
70. http://www.bbc.co.uk/iplayer/ (Last visited June 15 2011).
71. The Creative Archive content is made available to internet users for use within the UK, as UK citizens pay the BBC licence fee (which includes TV, radio, online, as well as other services such new technology investment and collecting the fee). For 2010, the BBC licence fee amounted to 145.50http://www.bbc. co.uk/aboutthebbc/licencefee/
72. Julie E. Cohen, Creativity and Culture in Copyright Theory, 40 U.C. Davis L. Rev. 1151 (2007).
73. Rebecca Tushnet, User-Generated Discontent: Transformation in Practice, 31 Colum. J.L. & Arts 497 (2008
74. See e.g. Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (2003)
75. Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (2008).
76. Mira Burri, The Global Digital Divide as Impeded Access to Content, in Trade Governance in the Digital Age, 396-420 (Mira Burri and Thomas Cottier eds, 2012).
77. Mark Warschauer and Tina Matuchniak, New Technology and Digital Worlds: Analyzing Evidence of Equity in Access, Use, and Outcomes, 34 Rev. of Research in Educ. 179-213 (2010).
78. Larry Rohter, Brazilian Government Invests in Culture of Hip-Hop, N.Y. Times, Mar. 14, 2007.
79. Centers receive a standard multimedia kit consisting of computers, video and audio recording equipment, open source software and broadband connectiv-ity. Further equipment purchases and start-up costs can be covered by the government, which also provides ongoing training and technical support. For a fully fledged analysis of the Culture Points programme, see Sean Pager s Chapter 12 in this volume.
80. See e.g. Mira Burri-Nenova, The Long Tail of the Rainbow Serpent: New Technologies and the Protection and Promotion of Traditional Cultural Expressions, in Intellectual Property and Traditional Cultural Expressions in a Digital Environment 205-36 (Christoph Beat Graber and Mira Burri-Nenova eds, 2008).
81. David Weinberger, Everything Is Miscellaneous: The Power of the New Digital Disorder (2007).
82. Erik Brynjolfsson, Yu Hu and Duncan Simester, Goodbye Pareto Principle, Hello Long Tail: The Eff ect of Search Costs on the Concentration of Product Sales, 57 Mgmt. Sci. 1373 (2011http://ssrn. com/abstract=953587
83. Tim Wu, The Wrong Tail: How to Turn a Powerful Idea into a Dubious Theory of Everything, 2006
84. For an analysis of the "long-tail" theory in the specific context of cultural diversity, see Michal Shur-Ofry, Chapter 10 in this volume.
85. Germann argues that this specific characteristic of cultural goods is the main one that calls for state intervention for the attainment of cultural objectives. See Christophe Germann, Culture in Times of Cholera: A Vision for a New Legal Framework Promoting Cultural Diversity, 6 ERA-Forum 109, 116 (2005).
86. James Surowiecki, The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, and Nations (2003)
87. Clay Shirky, Here Comes Everybody: The Power of Organizing without Organizations (2008).
88. Siva Vaidhyanathan, The Googlization of Everything (and Why We Should Worry) (2011).
89. "Almost every area of public and social policy is in some respects part of internet policy." See Oxford Internet Institute, Towards a Future Internet: Interrelation between Technological, Social and Economic Trends, Final Report for DG Information Society and Media, at 41 (2010).
90. See Daniel Gervais, Chapter 2 in this volume.
91. Mira Burri-Nenova, The New Concept of Universal Service in a Digital Networked Communications Environment, 3 I/S: J.L. & Pol y for Info. Soc y 117 (2007).
92. Charles Leadbeater, Cloud Culture: The Future of Global Cultural Relations (2010).
93. Jonathan L. Zittrain, The Generative Internet, 119 Harvard L. Rev. 1974
94. Urs Gasser and John G. Palfrey, Breaking Down Digital Barriers: When and How ICT Interoperability Drives Innovation, Berkman Center Research Publication No. 08 (2008).
95. John G. Palfrey and Ralf Rogoyski, The Move to the Middle: The Enduring Threat of "Harmful" Speech to the End-to-End Principle, 21 Wash. U. J.L. & Pol y 31 (2006).
96. The principle of net(work) neutrality holds that the network should be neutral to the content being passed and that intermediaries should pass all packets, while the intelligence is located at the edges of the network where necessary. See e.g. Susan P. Crawford, Network Rules, 70 Law & Contemp. Probs. 51 (2007).
97. UNESCO Convention, art. 4(1) ("the manifold ways in which the cultures of groups and societies find expression").
98. Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation toward Sustainable Commons and User Access, 52 Fed. Comm. L.J. 561, 567-68 (2000).