Keywords

Copyright; Cultural diversity; UNESCO; World Trade Organization; GATT; GATS; TRIPS Agreement

JEL Classification Codes

F10; F19; F53; F59; K33; O34; Z11; Z19

16.1 Introduction

This chapter considers the relationship between the international legal regime for protecting cultural diversity and the international copyright system, which is now embedded within the law of the World Trade Organization (WTO). In order to examine this relationship, the chapter looks at six issues. First, in Section 16.2, it considers the treatment of the concept of cultural diversity in international law in light of the 2005 UN Educational, Scientific, and Cultural Organization (UNESCO) Convention on the Protection and Promotion of the Diversity of Cultural Expressions.¹ In this section it is suggested that the UNESCO Convention may be regarded as articulating and building upon rights previously laid down in the human rights covenants to the Charter of the United Nations, with the consequence that the concept of cultural diversity is invested with human rights credentials. As a basis for arguing that some relationship should exist between the UNESCO Convention and the copyright system, Section 16.3 offers some views on the extent to which the concept of culture in the UNESCO Convention interacts with the concept of culture with which copyright is concerned. The chapter then turns to a more detailed analysis of the relationship between copyright and cultural diversity in Section 16.4, followed in Section 16.5 by a consideration of the extent to which the entrenching of the international copyright system in the WTO has affected this relationship. Section 16.6 broadens this consideration by arguing that other provisions of WTO law exacerbate the negative effects of the international copyright system on cultural diversity. Finally, in Section 16.7, the chapter comments upon the extent to which there is a clash between the ‘human right’ to cultural diversity, if it exists, and the international copyright system.

16.2 Cultural Diversity as a Concept in International Law?

A discourse exists in the instruments of public international law suggesting, at least, the valorization of cultural diversity. This discourse can be observed, for example, from the composite effect of a range of provisions found in the human rights covenants to the Charter of the United Nations.² While these provisions are more properly concerned with questions of cultural self-determination, it is clear that this necessarily carries with it a concern to preserve diverse cultural identities. A more explicit engagement with the concept of cultural diversity arrived in the form of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005.³ While the relationship between the Covenants to the Charter of the United Nations and the UNESCO Convention is not made explicit, it is evident from both its Preamble and its operative provisions that the UNESCO Convention firmly lodges itself within the human rights camp, even if it does not go so far as to create a new human right.⁴ So far as the Preamble is concerned, amongst an enormous list of other things, it declares itself to be, in the words of the first five paragraphs:

Affirming that cultural diversity is a defining characteristic of humanity,

Conscious that cultural diversity forms a common heritage of humanity and should be cherished and preserved for the benefit of all,

Being aware that cultural diversity creates a rich and varied world, which increases the range of choices and nurtures human capacities and values, and therefore is a mainspring for sustainable development for communities, peoples and nations,

Recalling that cultural diversity, flourishing within a framework of democracy, tolerance, social justice and mutual respect between peoples and cultures, is indispensable for peace and security at the local, national and international levels,

Celebrating the importance of cultural diversity for the full realization of human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and in other universally recognized instruments,

…

The location of the Convention within the stable of human rights instruments that is suggested in the Preamble is reinforced by a number of the operative provisions of the Convention. Two such provisions are of particular note in this respect. One is the first of the Convention’s so-called guiding principles in Article 2.1, which provides:

Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof.

The other relevant article, however, provides the clearest invocation of the authority and relevance of the pre-existing human rights instruments. This is Article 5.1, which is concerned with the obligations of the parties to the Convention:

The Parties, in conformity with the Charter of the United Nations, the principles of international law and universally recognized human rights instruments, reaffirm their sovereign right to formulate and implement their cultural policies and to adopt measures to protect and promote the diversity of cultural expressions and to strengthen international cooperation to achieve the purposes of this Convention.

By drawing together the various strands from pre-existing international law, the UNESCO Convention may be conceptualized as a particular, if rather Byzantine, instantiation of the right to cultural self-determination. Certainly it gives more concrete form to the idea that the promotion and protection of cultural diversity should be the subject of international legal obligations. However, is this new form likely to be more successful than its forerunners in counterbalancing the effects of the international copyright system, which is now so firmly entrenched within the system of international economic law operating under the auspices of the WTO?

16.3 The Concept of ‘Culture’

Before moving on to the question of the operation and effect of copyright in the arena of cultural diversity, it is necessary to put some flesh on the bones of the concept of ‘culture’ with which the UNESCO convention is concerned. In fact, there is a great deal of flesh to play around with here, ‘culture’ being a totalizing concept of enormous potential width and diversity.⁵ The UNESCO Convention attempts to give form to the concept of culture with which it is concerned, although it is noticeable that its definitions, which are found in Article 4, involve some circularity because they all invoke the notion of culture in order to define it. This possibly inevitable circularity is not the only indication that the drafters of the Convention experienced considerable difficulty pinning down the central concept with which they were concerned.⁶ It is also evident that each attempt at definition gives rise to other definitional problems that call for further elucidation (and circularity). Article 4 of the Convention defines its central concept of ‘cultural diversity’ as ‘the manifold ways in which cultures and groups and societies find expression’, including ‘diverse modes of artistic creation, production, dissemination, distribution and enjoyment, whatever the means and technologies used’. ‘Cultural content’ is ‘the symbolic meaning, artistic dimension, and cultural values that originate from or express cultural identities’. ‘Cultural expressions … result from the creativity of individuals, groups and societies, and … have cultural content’. Article 4 also deals with the more concrete aspects of cultural expressions. It defines ‘cultural activities, goods and services’ as those that ‘embody or convey cultural expressions, irrespective of the commercial value they may have’. Cultural activities are, however, distinguished from cultural goods and services on the basis that they ‘may be an end in themselves, or they may contribute to the production of cultural goods and services’. The production and distribution of these cultural goods and services may be undertaken by ‘cultural industries’.

The interest manifested by the Convention in the production of cultural goods and services by cultural industries suggests a clear, if unarticulated, link with copyright law. While it is clear that copyright would not apply to the full range of cultural expressions and activities with which the Convention is concerned, there is a reasonably marked overlap between those things that would appear to fall within the definition of cultural goods and services in the Convention and the range of works protected by copyright law. As is envisaged in the Convention, this also raises the question of the role of the cultural industries in the copyright arena. Of course the cultural industries are not involved in the production of all the cultural goods and services protected by copyright. Indeed, on the creative side much production is done by individuals or groups that would hardly feel comfortable with the sobriquet ‘cultural industry’.⁷ On the other hand, there are some copyright cultural goods and services that are more obviously the product of the cultural industries, the clearest example of these being films and broadcasts, which rely on the collaboration of a wide range of creative activities under the auspices of a ‘cultural industry’. One might also argue that the production of a book or a CD in a commercially available form is a collaboration between the quintessential artist in the garret and a publisher, the latter of which might reasonably be described as being part of a cultural industry. Even where the cultural industries cannot be said to be involved in the production of copyright goods and services, they have a clear role in their distribution. These roles of the cultural industries in the production and distribution of certain types of cultural goods and services are subject to generous protection by copyright law. This protection often uncomfortably sits alongside the protection that copyright offers to individual creators. The ensuing tension between creative or cultural interests and business interests lies at the heart of copyright’s relationship with the concept of cultural diversity.

16.4 Copyright and Culture

The international copyright system, which is now embedded in the international trading system as a consequence of the WTO Agreement on Trade-Related Aspects on Intellectual Property (TRIPS Agreement), has operated at least in relation to some types of copyright-protected ‘cultural goods and services’ as a fetter on creativity and cultural diversity. This effect has been produced by certain aspects of copyright law itself, allied with aspects of behavior in the market for cultural goods and services.

The threat that copyright law poses to cultural diversity and self-determination is a consequence of the process by which it commodifies and instrumentalizes the cultural outputs with which it is concerned. There are five interdependent aspects of copyright law that have been essential to this process. The first and most basic tool of commodification is the alienability of the copyright interest. This is a critical factor in the context of this chapter, and arises as a consequence of the fact that copyright law operates on the basis of a distinction between the author of copyright works and the owner of those works. While the author maintains some symbolic significance in copyright law,⁸ the rights conferred by copyright are enjoyed by the owner of the rights. Sometimes authorship and ownership coincide – authors of literary, dramatic, musical, and artistic works, for example, are usually the first owners of the copyright in those works, and film directors typically have a share of the copyright interest.⁹ However, at least in the Anglo-American system, these interests can be freely transferred by contract. Thus, it is frequently the case that authors of copyright works come under pressure to transfer their copyright to those who are making an investment in the distribution of the works, such as publishers and music and film production companies. In other words, it is the practice of the cultural industries to take advantage of the alienability of the copyright interest to gather in as many copyright interests as they can. Since the transfer of copyright interests is a question of contract, the extent to which a publisher or production company will be successful in doing this is largely a matter of relative bargaining positions and market power. Nevertheless, where this process of ‘gathering in’ is successful, it has the consequence of uniting in the same hands the copyright interests in primary creative works and the copyright interests already enjoyed by those who invest in the distribution of those same works.¹⁰

A second significant aspect of copyright law making it an important tool of trade and investment is its duration. The long period of copyright protection increases the asset value of individual copyright interests (Towse, 1999). Thirdly, copyright’s horizontal expansion means that it is progressively covering more and more types of cultural production. Fourthly, the strong commercial distribution rights,¹¹ especially those that give the copyright holder control over imports and rental rights, have put copyright owners in a particularly strong market position, especially in the global context. Finally, the power of the owners of copyright in relation to all those wishing to use copyright material has been bolstered by a contraction of some of the most significant user rights in relation to copyright works, in particular fair dealing/fair use and public interest rights. This has been accompanied by significant shifts in rhetoric. Not only have the monopoly privileges of intellectual property (IP) owners become ‘rights’, user rights have become ‘defenses’ or ‘exceptions’. Thus, users are protected by ‘exceptions’ to ‘rights’. Nothing could better encapsulate their current vulnerability. Allied to these characteristics of copyright law is the development of associated rights, in particular the right to prevent measures designed to circumvent technological protection,¹² which has no fair-dealing type exceptions and which, as we know now, is capable of a quite repressive application.¹³

Viewed in isolation from the market conditions that characterize the cultural industries, copyright’s commodification of cultural output might appear not only benign but justified by both the need for creators to be remunerated in order to encourage them to create¹⁴ and the need for cultural works to be disseminated in order to reap the social benefits of their creation.¹⁵ However, viewed in context the picture is somewhat different. Copyright law has contributed to, augmented, or created a range of market features that have resulted in a high degree of global concentration in the ownership of IP in cultural goods and services. Five such market features, in particular, stand out. First is the internationally harmonized nature of the relevant IP rights.¹⁶ This dovetails nicely with the second dominant market feature, which is the multinational operation of the corporate actors who acquire these harmonized IP rights while at the same time exploiting the boundaries of national law to partition and control markets. The third relevant feature of the market is the high degree of horizontal and vertical integration that characterizes these corporations. Their horizontal integration gives them control over a range of different types of cultural products, while their vertical integration allows them to control distribution, thanks to the strong distribution rights conferred on them by copyright law.¹⁷ The fourth feature is the progressive integration in the ownership of rights over content and the ownership of rights over content-carrying technology. Finally, there is the increasing tendency since the 1970s for acquisition and merger in the global market for cultural products and services.¹⁸ Besides being driven by the regular desires (both corporate and individual) for capital accumulation, this last feature has been produced by the movements towards horizontal and vertical integration, and integration of the ownership of rights over content and content-carrying technology.¹⁹

The consequences for cultural diversity of this copyright-facilitated aggregation of private power over cultural goods and services on the global level are not happy ones. Through their control of markets for cultural products, the multimedia corporations have acquired the power to act as a cultural filter, controlling to some extent what we can see, hear, and read.²⁰ For example, the corporate interests controlling the popular music industry are famous for their habit of selective release of their catalogue in national markets, even after the pressures that have been exerted on them by the availability of music online.²¹ Similarly, in the film industry, the control over distribution that is enjoyed by the major media and entertainment corporations means that these corporations can control to some extent what films are made, what films we can see, and our perception of what films there are for us to see. The expense involved in film production and distribution means that without access to the deep pockets of the majors and their vertically integrated distribution networks, it is difficult, although not impossible, to finance independent filmmaking and distribution. This naturally reduces the volume of independent filmmaking. The high degree of vertical integration that characterizes the film industry, especially the ownership of cinema chains, means that many independent films that are made find it difficult to make any impact on the film-going public, mainly because we do not know they exist. The control by the media and entertainment corporations of the films that are made is also a consequence of their habit of buying the film rights attached to the copyright in novels, plays, biographies, and so on. There is no obligation on the film corporations to use these rights once they have acquired them, but of course no one else can do so without their permission. Similarly, the film corporations may choose not to release certain films in which they own the exclusive distribution rights, or only to release certain films in certain jurisdictions or through certain media. All these things mean that the media and entertainment corporations are acting as a cultural filter.²²

Closely associated with this filtering power is the tendency towards homogeneity in the character of available cultural products and services.²³ This tendency, and the commercial context in which it occurs, has been well summed up by the comment that a large proportion of the recorded music offered for retail sale has ‘about as much cultural diversity as a McDonald’s menu’ (Capling 1996, p. 22). It makes good commercial sense in a globalized world to train taste along certain reliable routes, and the market for cultural goods and services is no different in this respect from any other.²⁴ Of course there is a vast market for cultural goods and services, and as a consequence, the volume of production is immense. However, it would obviously be a serious mistake to confuse volume with diversity.

The vast corporate control over cultural goods and services also has a constricting effect on what has been described as the intellectual commons or the intellectual public domain.²⁵ The impact on the intellectual commons manifests itself in various ways. For example, private control over a wide range of cultural goods and services has an adverse impact on freedom of speech. This is all the more concerning because control over free speech by private entities is not constrained by the range of legal instruments that have been developed in Western democracies to ensure that public or governmental control over free speech is minimized.²⁶ The ability to control free speech, arguably objectionable in its own right,²⁷ facilitates a form of cultural domination by private interests. For example, this domination may take the subtle form of control exercised over the way we construct images of our society and ourselves.²⁸ However, this control is reinforced by the industry’s aggressive assertion of control over the use of material assumed by most people to be in the intellectual commons and, thus, in the public domain. The irony is that the reason people assume such material to be in the commons is that the copyright owners have force-fed it to us as receivers of the mass culture disseminated by the mass media. The more powerful the copyright owner, the more dominant the cultural image, but the more likely that the copyright owner will seek to protect the cultural power of the image through copyright enforcement. The result is that not only are individuals not able to use, develop, or reflect upon dominant cultural images, they are also unable to challenge them by subverting them.²⁹

As an example of this type of concern Waldron (1993) uses the case of Walt Disney Prods v. Air Pirates.³⁰ In this case the Walt Disney Corporation successfully prevented the use of Disney characters in Air Pirates comic books, which were said to depict the characters as ‘active members of a free thinking, promiscuous, drug-ingesting counterculture’.³¹ Note, however, that the copyright law upon which the case was based does not only prevent this depiction, it prevents their use altogether. Waldron comments (1993, p. 883):

The whole point of the Mickey Mouse image is that it is thrust out into the cultural world to impinge on the consciousness of all of us. Its enormous popularity, consciously cultivated for decades by the Disney empire, means that it has become an instantly recognizable icon, in a real sense part of our lives. When Ralph Steadman paints the familiar mouse ears on a cartoon image of Ronald Reagan, or when someone on my faculty refers to some proposed syllabus as a ‘Mickey Mouse’ idea, they attest to the fact that this is not just property without boundaries on which we might accidentally encroach … but an artifact that has been deliberately set up as a more or less permanent feature of the environment all of us inhabit [footnote omitted].

Coombe (1998) describes this corporate control of the commons as monological and accordingly destructive of the dialogical relationship between the individual and society:

Culture is not embedded in abstract concepts that we internalize but in the materiality of signs and texts over which we struggle and the imprint of those struggles in consciousness. This ongoing negotiation and struggle over meaning is the essence of dialogic practice. Many interpretations of IP laws quash dialogue by affirming the power of corporate actors to monologically control meaning by appealing to an abstract concept of property. Laws of IP privilege monologic forms against dialogic practice and create significant power differentials between social actors engaged in hegemonic struggle. If both subjective and objective realities are constituted culturally – through signifying forms to which we give meaning – then we must critically consider the relationship between law, culture, and the politics of commodifying cultural forms (Coombe, 1998, p. 86).

Some remnants of a dialogical relationship ought to be preserved by copyright’s fair dealing/fair use right. It is, after all, this aspect of copyright law that appears to be intended to permit resistance and critique (Gaines, 1991, p. 10). Yet the fair dealing defense is a weak tool for this purpose and is becoming weaker.³²

These constrictions of the intellectual commons (or public domain) affect its vibrancy and creative potential. They also tend to undermine the utilitarian/development justification for copyright, which is increasingly seen as the dominant justification for copyright protection, especially in jurisdictions reflecting the Anglo-American bias on these matters. As is well-known, the general idea underlying this justification is that the grant of copyright encourages the production of the cultural works, which is essential to the development process.³³ However, the consequences of copyright’s commodification of cultural goods and services as described above seem to place some strain on this alleged relationship between copyright and development. This argument may be illustrated by reference to the World Commission on Culture and Development’s concept of development as being about the enhancement of effective freedom of choice of individuals.³⁴ Some of the things that matter to this concept of development are ‘access to the world’s stock of knowledge, … access to power, the right to participate in the cultural life of the community’³⁵ – all ideas that are reprised by UNESCO in one form or another in its 2005 Convention. The edifice of private power that has been built upon copyright law has deprived us all to some extent of the benefits of this type of development. As Waldron (1993, p. 885) comments, ‘[t]he private appropriation of the public realm of cultural artifacts restricts and controls the moves that can be made therein by the rest of us’.

16.5 Copyright as Part of the Trips Agreement

The impact of copyright on cultural diversity that has been described above was already well-established before the advent of the WTO in 1994. The question that is now addressed is whether the establishment of the new multilateral trading framework under the auspices of the WTO has exacerbated the tensions between the protection of copyright and the promotion of cultural diversity. In part, the answer to this question depends on the effects of the WTO’s TRIPS Agreement.

If the arguments made in this chapter concerning the relationship between copyright and cultural diversity are persuasive then it is difficult to conceive of the TRIPS Agreement as contributing in a positive way to this relationship. This can hardly be a surprise. The conclusion of the TRIPS Agreement was formally driven by the United States; however, lying behind the government of the United States as formal actor was a formidable coalition of US-based multinational corporate interests that were pushing for a strong system of rights to protect their trading interests.³⁶ The upshot of this activity is a multilateral agreement the very name of which reflects its gestation and instrumentality – since the arrival of the TRIPS Agreement, IP law has been explicitly configured as being about ‘rights’ in relation to ‘trade’. For those who would want to see copyright supporting a concept of culture and cultural products having a value in their own right rather than having a purely instrumental value, some comfort might be taken from the fact that the agreement refers to ‘trade-related aspects’ of IP and thereby suggests that there may be some other aspects. However, this is cold comfort – not only is the TRIPS Agreement the dominant normative instrument of international IP law, its location within the suite of WTO agreements means that it is an integral part of what is emerging as the pre-eminent system of international law making.³⁷ These two aspects of the TRIPS Agreement are of course intrinsically related. The systemic legal dominance and concomitant strong enforcement procedures of the WTO are a large part of the reason that the TRIPS Agreement has acquired the ability to define the parameters of IP law discourse.³⁸ While it is true that some of the most important steps down the instrumental/trade-related road were taken before the advent of the TRIPS Agreement at least in the Anglo-American model of copyright law, the TRIPS Agreement has provided an authoritative consolidation and normalization of that approach.

The copyright provisions of the TRIPS Agreement are more or less the same as those already laid down in the Berne Convention for the Protection of Literary and Artistic Works, which formerly governed the international copyright regime.³⁹ Therefore, there are not enormous differences between the legal framework of international copyright law before and after TRIPS. Yet, the reification of IP rights as trade rights capable of enforcement through a system of trade retaliation seems to be emphasizing certain aspects of the international copyright landscape at the expense of others – a perception reinforced by two further factors. The first is that the TRIPS Agreement has shown itself to be a useful uniform basis upon which to negotiate bilateral investment treaties, which may strengthen the oligopolistic nature of the market for cultural goods and services (Drahos, 2001). Indeed, wrapped up in this observation is the further suggestion that the TRIPS Agreement might be even better characterized as an investment agreement than as a trade agreement (Macmillan, 2005). Either way, its capacity to nourish cultural diversity seems rather limited. The second factor reinforcing the nature of the change in the international copyright landscape is that the interpretation and enforcement of international copyright law is now in the hands of trade law experts, who are not necessarily experts in IP law or practice.

The WTO panel in United States – Section 110(5) of US Copyright Act ⁴⁰ does not do much to relieve concerns about the effect of the TRIPS Agreement on the current trajectory of copyright law. This case considers the so-called three-step test for the validity of national copyright exceptions in Article 13 of the TRIPS Agreement.⁴¹ It is of some importance in the present context because the width of exceptions to the copyright interest are key to ameliorating the strength of the copyright holder. As a result of the incorporation of the provisions of the Berne Convention into the TRIPS Agreement,⁴² the Agreement contains a range of exceptions. These include the general exception provision in Article 9(2) of the Berne Convention, which contains its own version of a three step test for exceptions. The WTO panel in US Copyright decided that Article 13 of the TRIPS Agreement was an embodiment of the minor exceptions doctrine that formed part of the Berne Convention. The panel does not explain why, if the minor exceptions doctrine was already part of the Berne Convention and (therefore) the TRIPS Agreement, it was necessary to repeat it in Article 13. Thus, it missed the opportunity to consider the possibility that Article 13 might add something to the existing body of law. Interestingly enough, buried in the EU arguments in US Copyright are the seeds of a suggestion as to what the ‘something’ possibly added by Article 13 might be. The European Union argued that the requirements of the first step, that exceptions must be confined to ‘certain special cases’, required justification by reference to a legitimate policy purpose that might for example include the need to balance the interests of copyright owners and users in certain cases. This argument might be bolstered by reference to the objective stated in Article 7 of the TRIPS Agreement that speaks about IP rights being used in a manner that is ‘conducive to social and economic welfare, and to a balance of rights and obligations’. Not only was this Article ignored in US Copyright, but the whole concept of copyright as a balance between rights and obligations was overlooked. Once this balance is lost, copyright’s potential as a tool of cultural domination and homogenization is unconstrained by any mechanism internal to copyright law.

16.6 The Rest of the WTO

The TRIPS Agreement, which imposes minimum legal standards with respect to national IP protection, is somewhat aberrant in the context of the overall WTO stable of agreements because, unlike TRIPS,⁴³ the other WTO multilateral agreements are dedicated to reducing national barriers to trade using three main tools: the reduction of tariffs, the reduction of non-tariff barriers, and ‘the elimination of discriminatory treatment in international trade relations’.⁴⁴ The last-mentioned is effected through the principles of national treatment and most-favored nation (MFN) treatment.⁴⁵ Taken together these two principles provide that a WTO Member State may not create a trade disadvantage vis-à-vis domestic goods and services for like goods or services coming from another WTO Member State nor may they discriminate between like goods and services coming into their jurisdiction from more than one other Member State.⁴⁶ The WTO agreements laying down obligations pursuant to the principles of national treatment and MFN treatment are subject to a range of exceptions allowing governments to take steps involving pressing national priorities that would amount to breaches of these principles in some cases, but the exceptions are limited and narrowly drawn.

In terms of the picture painted above of cultural domination by private actors, a national government may wish to take steps to ameliorate the effects of the oligopolistic markets for cultural goods and services. For example, it may attempt to prevent the swamping of local culture as the result of the homogenizing effect of global media and entertainment oligopolies by providing for quotas, local content restrictions, or subsidies for local cultural production.⁴⁷ All these sorts of devices run the risk of falling foul of WTO rules, especially the General Agreement on Trade in Services (GATS).⁴⁸ Due to the somewhat unusual nature of the GATS as a bottom-up liberalizing agreement, WTO Members are only bound by the liberalizing provisions of GATS to the extent that they have accepted obligations in the relevant sector.⁴⁹ There is not yet any general agreement or protocol on liberalization of obligations in the audiovisual sector,⁵⁰ which is the sector in which the cultural effects of the copyright-induced oligopolies are most keenly experienced.⁵¹ However, some WTO Members have undertaken relevant obligations and there is considerable international political pressure for more liberalization in this sector.⁵² Of course, there continues to be resistance to undertaking liberalization commitments in areas affecting cultural policy and an argument might be made that one of the most important effects of the coming into force of the 2005 UNESCO Convention is to galvanize this political resistance.

However, if commitments are made under GATS, perhaps as a result of overwhelming political pressure at the international level, derogations from the principles of MFN treatment and national treatment are allowed if they are contained in the relevant Member’s GATS schedules.⁵³ Otherwise, the regime is strict and the range of exceptions laid down in Article XIV quite narrow compared for example to the older GATT.⁵⁴ As under the GATT, to make out an exception under the GATS it is necessary to show not only that the subject matter of the relevant measure falls within one of the specific classes of exceptions, but also that it complies with the so-called chapeau with which the Article commences. Specifically, Article XIV provides as follows:

Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade in services, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any member of measures:

As is apparent, there is no specific exception in Article XIV that relates to cultural diversity or any associated concept.⁵⁵ The closest one might get to this would be an expansive reading of paragraph (a) on the basis that measures designed to protect human rights may be regarded as ‘necessary to protect public morals or to maintain public order’. The WTO Appellate Body decision in United States – Measures Affecting the Cross-Border Supply of Gambling and Betting Services,⁵⁶ which considered the meaning and application of Article XIV(a), suggests that such a result is possible. In its decision the Appellate Body quoted with apparent approval the definitions given to ‘public morals’ and ‘public order’, respectively, in the panel decision.⁵⁷ According to the panel, the former ‘denotes standards of right and wrong conduct maintained by or on behalf of a community or nation’.⁵⁸ The latter expression is qualified by footnote 5 of the GATS, which provides that ‘[t]he public order exception may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society’. Taking this into account, the panel found that ‘“public order” refers to the preservation of the fundamental interests of a society, as reflected in public policy and law’.⁵⁹ The panel found, and the Appellate Body agreed, that since the various measures in question were concerned with preventing ‘money laundering, organized crime, fraud, underage gambling and pathological gambling’, they were concerned with protecting either or both of public morals or public order.⁶⁰ This reasonably expansive reading tends to suggest that measures necessary for protecting human rights would have a chance of falling within the exception. Of course, even this very optimistic approach to interpretation raises the question of whether there is a ‘right’ to cultural diversity that falls within the general description of a human right. As Section 16.2 of this chapter sought to show, while the concept of cultural diversity appears to be located within the framework of the human rights covenants to the Charter of the United Nations, the consensus of opinion is that the 2005 UNESCO Convention did not create a new right to cultural diversity.

Optimism about the WTO treatment of the concept of cultural diversity in the UNESCO Convention must also be regarded as somewhat dented by the relatively recent WTO Appellate Body decision in China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audio-Visual Entertainment Products.⁶¹ In this dispute China sought to rely on the exception in Article XX(a) of GATT in relation to a range of measures for establishing a process of content review with accompanying selective bans on the importation and distribution of cultural goods, comprising reading materials, audiovisual products and films for theatrical release. As the Appellate Body related in its Report:

China emphasized particular characteristics of cultural goods, including the impact they can have on societal and individual morals. It is for this reason, according to China, that it has adopted a regulatory regime under which the importation of reading materials, audiovisual products, and films for theatrical release containing specific types of prohibited content is not permitted. To this end, China explained, its existing regulatory regime defines the content that China considers to have a negative impact on public morals and, in order to ensure that such content is not imported into China, establishes a mechanism for content review of relevant products that is based upon the selection of import entities.⁶²

In support of its contention that cultural goods have particular characteristics that impact on societal and individual morals, China relied on Article 8 of the 2001 UNESCO Universal Declaration on Cultural Diversity for the proposition that cultural goods are ‘vectors of identity, values and meaning’ and that they ‘must not be treated as mere commodities or consumer goods’.⁶³ China also placed reliance in this respect on the 2005 Cultural Diversity Convention.⁶⁴ It seems that these references were largely perplexing to the panel and Appellate Body, both of which effectively side-lined them in favor of an approach that relied upon their recurring preoccupation with the meaning of the word ‘necessary’ as it appears in the Article XX exceptions. Perhaps this is understandable in light of the fact that China had attempted to use the UNESCO instruments to justify an arguably protectionist system of state censorship. Under these circumstances, and since one could imagine a stronger case employing the concept of cultural diversity as a human right, perhaps not all optimism should be abandoned. Nevertheless, there are some other problems that arise with respect to the utility of the public morals and public order exception in relation to measures designed to protect or promote cultural diversity.

One problem, which plagues many of the WTO exceptions, is the restrictive interpretation that has been given to the word ‘necessary’. Early WTO jurisprudence interpreted ‘necessary’ in the context of the GATT exceptions as requiring that there be no alternative measures that are consistent, or more consistent, with GATT.⁶⁵ The status of this approach was opened to some doubt in a range of cases concerning the GATT,⁶⁶ and by Cross-Border Gambling in the context of Article XIV of the GATS. The effect of these more recent cases was summarized by the Appellate Body in Dominican Cigarettes. It noted that a measure is ‘necessary’ to achieve a certain result if another WTO-consistent measure is not ‘reasonably available’.⁶⁷ The Appellate Body went on to point out that:

[I]n assessing whether a proposed alternative to the impugned measure is reasonably available, factors such as the trade impact of the measure, the importance of the interests protected by the measure, or the contribution of the measure to the realization of the end pursued, should be taken into account in the analysis. The weighing and balancing process of these three factors also informs the determination whether a WTO-consistent alternative measure which the Member concerned could reasonably be expected to employ is available, or whether a less WTO-inconsistent measure is reasonably available.⁶⁸

This re-appraisal of the meaning of ‘necessary’ certainly lowers the bar for its application, although in relation to the question of the protection of cultural diversity there is some difficulty in predicting in advance whether other WTO-consistent measures might be ‘reasonably available’. Unfortunately, not many further insights on this question can be gleaned from the Appellate Body’s consideration of the concept of necessity in China – Entertainment Products,⁶⁹ other than the fact that this remains a central concern in the application of the exceptions.

Another hurdle in exempting measures designed to protect cultural self-determination and diversity is posed by the chapeau to Article XIV. As is evident on its face, it is concerned with the application of the measures in question. Somewhat less obvious is exactly what standards that application must attain in order to comply with the chapeau. This question was the subject of analysis in United States – Import Prohibition of Certain Shrimp and Shrimp Products (the Sea Turtles case),⁷⁰ in which it was considered in relation to the almost identical wording in GATT, Article XX.⁷¹ In the Sea Turtles case the Appellate Body acknowledged the difficulty in interpreting the expressions ‘arbitrary discrimination’ and ‘unjustifiable discrimination’ in the absence of any chapeau criteria for assessing arbitrariness or unjustifiability. This is presumably the reason for the Appellate Body’s reference to the shifting line of equilibrium that must be marked out when applying the chapeau ‘so that neither of the competing rights [of WTO Members] will cancel out the other and thereby distort and nullify or impair the balance of rights and obligations constructed by the Members themselves in that Agreement’.⁷²

Of course, one of the problems with this shifting line is that it makes it difficult to predict when a measure will fall foul of the chapeau. It may, however, be concluded from the Appellate Body Report in Sea Turtles, that measures offending general principles of fairness constitute arbitrary discrimination, while those distinguishing between different WTO Members without regard to their differing circumstances amount to unjustifiable discrimination.⁷³ In considering whether either type of discrimination was manifested by the relevant measure, the Appellate Body considered both the application of the measure and the fact that the United States had not attempted to negotiate a corresponding multilateral treaty obligation. The emphasis that the Appellate Body placed on the latter factor suggests that a measure having extraterritorial effect can only escape being unjustifiably discriminating where it is based on a treaty obligation.⁷⁴ Theoretically, this sounds quite hopeful for measures based on multilateral treaty obligations. Unfortunately, however, the UNESCO Cultural diversity Convention contains little in the way of formal treaty obligations that might be sufficient to convince a WTO dispute settlement panel that the strictures laid down in Sea Turtles have been met. In the end, the most likely effect of the UNESCO Convention is not on the operation of the exceptions to the GATS, but rather as a political device to constrain its signatory states from undertaking new GATS obligations that may lead to conflicts with the provisions of the Convention. The extent to which it will be effective for this purpose is likely to be a reflection on the countervailing political and strategic imperatives.

To summarize from the perspective of the WTO as a whole, it does not seem unreasonable to conclude that the TRIPS Agreement strengthens a copyright system that facilitates the growth of private oligopoly power over cultural output and the consequent cultural effects of this oligopoly power, while the other WTO agreements potentially forbid governments of WTO Member States to take ameliorating action or action aimed at correcting the resulting market distortions.

16.7 The Rights Clash?

Thus, at the international law level one is left with, on the one hand, the swathe of human rights treaties and conventions that address themselves to rights of cultural self-determination and diversity, and, on the other hand, the WTO. As argued above, the combined operation of the WTO agreements appears to fly in the face of international legal norms valorizing cultural self-determination and diversity. Is it correct to describe the relationship between these two systems of international law obligations as clashing? If so, what is the nature of this clash? This chapter concludes by examining the question of a rights clash from three different perspectives: a normative perspective, a formal legal perspective, and a consideration of systemic governance (or political) issues at the international level.

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