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Cultural Industries and Cultural Protection under the WTO

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Cultural Industries and Cultural Protection under the WTO Powered By Docstoc
					 Protection of cultural diversity and cultural
industries in the context of WTO accession;
   reflection on protection of the Ethnic
                  Minorities
                  LERAP
                   Hanoi
                JUNE 2005
                 Outline:
Context
Issues Arising from Comparative Experience
 Cultural Goods and Services
 Cultural Impact from Labeling and
    Advertising
 Special Considerations affecting National
    Minorities
International Bilateral and Regional Rules
 Current
 Future
         Context of this Study

 Accession of Vietnam to the WTO
   Negotiations on the liberalization of the
    Vietnamese economy
   US-Vietnam Bilateral Trade Agreement (BTA) as
    precedent
   Further liberalization will likely be required

  What is likely to be the impact on Vietnamese
   cultural industries and measures for cultural
   protection?
 Special Interests of National Minorities

  In addition to Kinh majority, Vietnam has 53
    national minorities

  Do national minorities raise special
   concerns, special questions, with respect
   to trade and culture?
Fundamental Issue:

  Should Vietnam seek to protect cultural
   interests in trade negotiations?
     Trade liberalization may not adversely
      affect cultural interests in Vietnam.
     Protection may limit economic benefits
      of trade.
     Therefore careful weighing needed.
     Protection may need to be carefully
     targeted in specific areas.
 How to define cultural goods and
 services?
   “High culture” versus “entertainment”?

   Cultural products = cultural goods and
    services

   Tangible and intangible creative products

   “We know it when we see it” ?

   UNESCO and ASEAN Declarations
   3. Special Considerations for
         National Minorities
Special Vulnerability for Traditional
 (especially indigenous) peoples
   young may absorb general culture, lose their
    own culture
   minority culture may be commercialized
   many statements by indigenous peoples (eg
    Seattle Declaration of 1999)
   some concern in international instruments
      ASEAN Declaration
      UNESCO Declaration
National Minorities may have unique interests
   special knowledge about culture and landscape
   special intellectual property concerns (communal
    rights; over traditional designs and knowledge)

National Minorities may have special rights
  For example:
   ASEAN Declaration on Cultural Heritage (2000)
   UNESCO Universal Declaration on Cultural
    Diversity (2001)
   United Nations Declaration on the Rights of
    Persons Belonging to National or Ethnic,
    Religious and Linguistic Minorities
    International Instruments
Existing Requirements:
US – Vietnam BTA:
 General:
   MFN and National Treatment with respect to goods
   Technical regulations not to create unnecessary
    obstacles to trade
   Protection of intellectual property rights
   MFN treatment with respect to services
      But can permit local trade across a border.
   Market Access and National Treatment for certain
    services
   Permission of advertising to facilitate business activity
 Chapter 4: MFN and NT for investment,
  but Annex H:
  1. Vietnam may adopt or maintain exceptions
   to the obligation to accord national treatment
   to covered investments in the sectors or with
   respect to the matters specified below:
   Broadcasting, television; production,
   publication and distribution of cultural
   products …
 Transparency
 No specific provision for national
  minorities
WTO Structure:
 GATT:
   General:
      cultural goods are the same as other goods
      MFN for goods
   Specific:
      Article IV (1947): can limit time for screening foreign
       films
      Article XVIII (1947): government assistance to
       economic development is okay, when low stage of
       development
      Article XX (1947): protection of public morals;
       protection of artistic and historic treasures
 GATS (1995)
   General:
      MFN opting out
      Market Access and National Treatment opting in
      Progressive liberalisation
   Specific:
     Canada:
         Follows cultural exemption policy
         MFN exemption for film and TV co-productions
         Did not adopt National Treatment in cultural sector
         Result: Canada withheld its cultural policies from
          GATS, to promote local cultural providers.
         But NB: uncertain boundary between cultural
          goods and services.
 TRIPS

   Copyrights are key element of cultural protection
    legislation: enforcement priority



 ASEAN FTA:
   Adopts GATT
   Permits protection of public morals, heritage treasures,
    etc
   See ASEAN Declaration (below)
        Current and Potential Developments:

Evolution of WTO requirements:
   General liberalization
   Accession generally used to press the
    liberalization agenda

    Cultural industries (audiovisual and publishing) difficult to
    predict:
      Some countries, especially USA, are pressing for
       liberalization
      But others, notably France and Canada, strongly
       support cultural exemptions
Tourism:
 APEC: Seoul Declaration on an APEC Tourism Charter
  (2000)
    Supports liberalization under GATS
    But “sustainable” management of tourism, including:
        protecting the “social integrity” of host communities
        recognizing and respecting local and indigenous cultures
 China: has agreed to liberalize many travel services

Advertising:
 United States is pressing for liberalization of advertising
  under GATS (US proposal to WTO, 2001)
Comparative Provisions of other Agreements:

   Canada – US FTA // NAFTA
      Cultural exemption, but subject to retaliation

       Section 1, article 2005 of CFTA: “Cultural industries are exempt
       from the provisions of this Agreement.” But other country can
       impose measures of “equivalent commercial effect”

       Cultural Industry: “an enterprise engaged in ... a) the publication,
       distribution, or sale of books, magazines, periodicals, or newspapers in
       print or machine-readable form, but not including the sole activity of
       printing or typesetting any of the foregoing, b) the production, distribution,
       sale or exhibition of film or video recordings, c) the production,
       distribution, sale or exhibition of audio or video music recordings, d) the
       publication, distribution, or sale of music in print or machine readable
       form, or e) radio communication in which the transmissions are intended
       for direct reception by the general public, and all radio, television and
       cable television broadcasting undertakings and all satellite programming
       and broadcast network services.”
 Australia – US FTA (2004)

   Reservation permitting Australia to retain:
      55% local content requirement in broadcasting
      80% local content transmission quota on
       advertising on free-to-air TV

   But no general cultural exemption (unlike Australia –
    Singapore FTA)
      Therefore cannot extend protection, eg to new
       platforms.
Agreements on Cultural Protection:

   See APEC Tourism Charter (above)

   ASEAN Declaration on Cultural Heritage (2000)
      wide definition of culture, including popular culture
      obligation to balance materialist culture with
       affirmation of “human spirituality, creative imagination
       and wisdom, social responsibility and ethical
       dimensions of progress”
      obligation to protect communal intellectual property
       and traditional knowledge
      allow local, national and regional cultures to control
       their own development
 UNESCO Universal Declaration on Cultural
  Diversity (2001)

   Cultural creations must not be treated “as mere
    commodities or consumer goods”
   States should create conditions for cultural diversity to
    flourish

   Draft Convention under preparation
                Still to Do:
Complete examination of Vietnamese
 legislation on these matters

Preparation of policy options/decisions for
  Vietnamese decision-makers.

				
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