Highlights:

Vol. 2, No. 5, September 2004

Countdown to Negotiation: UNESCO Member States Prepare to Debate Convention Content

The first intergovernmental negotiations session to negotiate the content of the proposed UNESCO convention on the protection of diversity of cultural contents and artistic expressions is now just days away—the session will run September 20 to 25. A major question will be what kind of currency the initial draft text released by UNESCO on July 15 will have in this process.

Will countries strongly support the draft while working to refine it and build the necessary support for it to be adopted in September 2005? Or will they seek to put it aside in favour of a return to a fundamental discussion of core objectives and principles for the convention before embarking on the drafting of a substantially different text?

The answers to those questions will have a major bearing on whether the convention campaign stays on track for adoption at the September 2005 General Conference. They will also provide a strong indication of what the realistic prospects are for a strong convention at the end of this process.

The September meeting will be the first in a series of three planned intergovernmental negotiation sessions, all to be held in Paris . The second session is expected to be held in January, and the third and final gathering will likely take place in late May or June, leading into the September 2005 General Conference where it is hoped that the convention will have progressed to a stage where it can be adopted.

On July 15, UNESCO released the draft text of the proposed convention on the protection of diversity of cultural contents and artistic expressions (Note: UNESCO continues to use this title for the document although the experts have proposed the title be changed to ‘Convention on the protection and promotion of diversity of cultural expressions’; however, in the body of the text the merged term ‘cultural expressions’ is generally used). This text was the culmination of the work of the multi-disciplinary experts group appointed by Director General Koїchiro Matsuura, which began its work last December and concluded with a three meeting in Paris at the end of May.

Although Member States will almost certainly express their initial positions during these first discussions in September, Member States have been given until mid-November to formally provide written comments to UNESCO.

A detailed discussion of the draft text of the convention is beyond the scope of this newsletter. But our view, after reviewing the draft text several times, is that it represents a workable starting point for discussions and negotiation.

We have serious concerns that if this text is put aside in the course of the first meeting that the likely outcome will be a significant delay in the process—raising the serious prospect of the process slipping to the 2007 General Conference—and a significantly diluted convention at the end of this process.

This is not to say that the text should sail through as is—there is a definite need to strengthen key articles. This includes those dealing with the rights of states to have cultural policies (articles 5 and 6), the clause spelling out the responsibility of states to uphold the objectives of the convention in other international fora (Article 13), and the key article establishing the relationship of the convention to other international agreements (19).

There is also a need to rework certain language in the draft—specifically, language in Principle 8 which focuses on ensuring cultural policies adhere to the principles of ‘balance’ and ‘proportionality’. These are loaded words in the world of international trade: ‘balance’ is an economist’s word and implies that there is some magical mathematical formula by which all cultural policies should be vetted; and ‘proportionality’ risks being interpreted to defining as an acceptable cultural policy in terms of the minimum necessary to rectify a crisis situation. Such an approach could have the consequence of severely constraining a country’s actual right to maintain or introduce cultural policies rather than enshrining this fundamental right in international law. In other words, the entire objective of the convention could be subverted.

This risk becomes more pronounced to the degree that other language in the convention—in Article 6, for example—risks confining the right of countries to apply cultural policies essentially in situations where cultural diversity is deemed to be ‘threatened’ or ‘vulnerable’. The danger of this approach is that a consequence could be that successful cultural policies—policies such as the 50% domestic content requirement established by the European Union’s Television Without Frontiers directive, or Korea’s 40% screen quota for domestic films—could come under attack due to the very fact that they have worked well and sparked healthy levels of local cultural production.

Finally, it must be said that the provisions for ensuring support and cooperation between developed and developing nations are weak. The provisions in this section raise the prospect of a cultural development fund, but in such tentative language that the ultimate creation of such a fund appears far from certain. In addition, stronger language could be incorporated committing developed countries to clearly define cultural development projects as eligible for support under their own international development programs.

The existing coalitions for cultural diversity—now closing in on 20 (see later article in this issue) will discuss the draft convention in depth at a September 13 meeting of the International Liaison Committee of Coalition s for Cultural Diversity (ILC-CCD).

The ILC-CCD has been accorded observer status for the UNESCO intergovernmental negotiations process, meaning that the ILC-CCD will be in the room for these meetings and will have a limited right of intervention during the discussions. With this in mind, a primary objective of the September 13 ILC meeting will be to establish as much as possible a joint position on behalf of all coalitions, which will be advocated during the course of the September 20-25 meetings.

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Over and above UNESCO’s own intergovernmental negotiations process, the October 2003 resolution mandating the Director General to undertake development of the convention specified that there should be consultation with other relevant bodies—specifically, UNCTAD, WIPO and the WTO.

In the Director General’s preliminary report issued in July on the work underway to develop the convention, Koїchiro Matsuura advises that meetings were held with the secretariats of WTO and WIPO on 16 and 17 June 2004 in Geneva, while UNCTAD (whose major conference, held every four years, was underway in Sao Paolo during this period) was consulted in writing.

The Director General states that “the representatives of the WIPO secretariat have welcomed with interest the main lines of emphasis and objectives of a preliminary text which recognizes the full importance of the protection of intellectual property rights. They have promised to transmit their detailed, albeit preliminary, written remarks to UNESCO.”

The WTO projects a more in-depth process for feeding back to UNESCO:

The Director-General has agreed to communicate the preliminary draft convention to the WTO secretariat in mid-July, at the same time as he will be sending it to the UNESCO Member States. WTO will circulate the draft convention among its specialized councils (Services Council, Intellectual Property (TRIPS) Council, Goods Council), and then transmit it, with their comments, to its General Council before bringing them to the attention of UNESCO. UNESCO should thus be informed of WTO’s official position by December 2004. In this way, the Director-General hopes that the Member States of both institutions will have plenty of time to express consistent and concerted views, following interministerial consultations within each Member State .

One does not have to read too closely between the lines to realize that, in his hope that the “Member States of both institutions will have plenty of time to express consistent and concerted views”, Matsuura is underscoring the importance of countries ensuring a consistent position regarding the content of the convention is sent through both channels—their ambassadors and other designated representatives at UNESCO and the WTO.

This emphasizes how important it will be for cultural organizations in each country to lobby not only their culture minister, but also their head of state and government, their foreign affairs minister (generally the minister to whom both UNESCO and WTO ambassadors report), and their international trade minister.

From the beginning, it has been our conviction that country-by-country mobilization and lobbying would be key to securing an effective convention, and the process laid out by Matsuura only reinforces this. This reinforces the importance of cultural organizations in each country taking the lead to advance this issue within their own country—and concentrating their impact wherever possible by joining together in coalitions that bring cultural organizations from all sectors—books, live performance, music, film and television, visual arts and new media—to speak on this issue with one voice.

Meanwhile, at the WTO,
the Doha Round Talks Relaunch

The international context for developing the UNESCO convention has changed significantly by the recent breakthrough at the WTO that led to a successful relaunch of the Doha Round of negotiations.

While it is still expected that these negotiations will take at least until 2007 to conclude, the official target date for concluding the talks is December 2005.

It is also worth noting that the work program document for the resumption of these talks emphasizes that there should be no a priori exclusion of any sector of services from the negotiations—meaning cultural services are in the mix unless each member state specifies otherwise.

In this regard, we must keep sight of the May 31, 2005 , deadline for tabling initial liberalization offers in the Doha negotiations. This deadline shows how the UNESCO and WTO processes are now on virtually parallel tracks, and heightens the importance of countries refraining from making liberalization commitments affecting culture in all trade negotiations during the period when the UNESCO convention is being developed, adopted and ratified.

…and the Pressure Continues from Bilateral Trade Talks

The campaign to secure a convention on cultural diversity has gained steady momentum since the idea of an international treaty on cultural diversity was first seriously advocated in the late 1990s. And it’s a good thing, too, because the pressure on countries to accept serious limitations to their ability to have cultural policies has increased steadily during this same period.

No source of pressure has been greater than the ambitious program of bilateral trade negotiations launched by the United States over the past five years—the scale of which was discussed at length most recently in the March issue of Coalition Currents .

In the year running up to the UNESCO General Conference, when it is hoped that the convention will be adopted, cultural organizations in several countries will face the challenge of persuading their governments of the importance of refraining from commitments on culture in trade negotiations during the critical period when the convention is being developed, adopted and ratified.

(It is important to keep sight of the fact that after adoption the UNESCO convention will have to be ratified by 30 countries in order for it to enter into effect—a target that UNESCO’s leadership estimates will take two-to-three years to achieve.)

Key negotiations to will be those involving the Andean Pact countries ( Peru , Colombia and Ecuador —with Bolivia expected to join the talks at a later date, while Venezuela has not been invited to the table), as well as bilaterals involving South Africa and Thailand .

The fourth round of talks in the Andean Pact negotiations is set for this month in Puerto Rico, and while news reports now indicate the talks are stalled on the issue of agricultural tariffs and subsidies, possibly calling into question the December 2004 target date for reaching a deal, previous U.S. negotiations with such countries as Chile, Costa Rica, the Dominican Republic and others set out a clear template that could accelerate these negotiations.

The first round of talks for a Thailand-US FTA was held June 28-July 2 in Hawaii , but the talks are not scheduled to conclude until June of 2006.

Of more imminent concern is the negotiation the US has underway with South Africa . Five rounds of talks have already been held, and target for concluding an FTA is December of this year. South Africa , with a population of 44 million people and an economy that is a leader in Sub-Saharan Africa, could set the tone for many of its neighbours.

And then there were 18:
Coalition Movement Gains Momentum

Newly established coalitions in Benin , Belgium Colombia, Germany , Peru , Togo and Uruguay have brought to 18 the total number of coalitions, joining Argentina , Australia , Burkina Faso , Canada , Chile , France , Korea , Mexico , Morocco , New Zealand and Senegal . The new coalitions have wasted no time taking action to advance the cultural diversity file in their countries. Here’s an update on recent activities of the new coalitions:

Colombia . The Colombian coalition was launched publicly at an August 19 press conference held in Bogota and has launched a broad consultation of its members to obtain their views regarding the draft text of the UNESCO convention. They have also set up their own web page.

Germany . Formally established in June following several months preparatory work, the German coalition has already held one large group meeting, attended by more than 70 leading figures from the cultural world, to begin preparing working documents identifying the expectations of German artists and cultural professionals with respect to the UNESCO convention. A similar consultation is planned for October 22.

Peru . In the context of Peru’s negotiations with the United States for a Free Trade Agreement, the Peruvian Coalition held a July 22 press conference to announce the formation of their coalition, supporting a letter they wrote to Peru’s President Alejandro Toledo Manrique: “As Head of State, we trust that you will stand up for cultural sovereignty and refrain from including cultural issues in a free trade agreement”.

The Coalition has also launched its own website.

Togo . Rasmane Ouédraogo of the Burkina Faso coalition was on hand for the formation of the Togo coalition and commented that “The birth of this new coalition adds to our numbers and will strengthen us in our battle. We continue our discussions with organizations in Benin , Mali and Niger with a view to seeing new coalitions established there in the new future.”

Uruguay . The Uruguayan coalition was established on June 22. Since then, the coalition members have been developed a work plan as well as reviewing the UNESCO convention text. They have al so been lobbying. Anna Danieli , an independent publisher and representatives of the CUDEL, the publishers’ association, provides the following report on the new coalition’s activities: “We’ve scheduled meetings with the ministers of Culture and Foreign Affairs and with all three presidential candidates (we have national elections in October) to talk about their position on the UNESCO Convention draft. We’re also studying the draft text with assistance from legal scholars. As a small, forward-looking country in the Southern Hemisphere, we’re basically consumers of culture. The Coalition will be launched soon at a major event, with leading figures from the cultural world in attendance. The event is timed to coincide with the International Liaison Committee meeting in Paris the week of the 14 th of September. At that time we will launch the Coalition as well as present our position on the draft text of the Convention.”

News of the establishment of the coalitions in Benin and Belgium arrived as this issue of Coalition Currents was in production. We will report in greater detail on the activities of these coalitions—as well as on news from such countries as Brazil, Ecuador, Hungary, Ireland and Italy, in which cultural professional organizations are at an advanced stage of discussions to create new coalitions—in the next issue of this bulletin.

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Civil Society Emphasize Urgency
of Cultural Diversity Convention During
2 nd Culture Ministers Meeting of the Americas

A delegation representing civil society at the 2 nd Meeting of Culture Ministers of the Americas urged the ministers to play leadership roles in their countries to ensure the success of the campaign for an international convention on cultural diversity at UNESCO while underscoring the importance of countries refraining from liberalization commitments on culture during the period when the convention is being developed, adopted and ratified.

The meeting, organized by the Organization of American States (OAS) and held August 23 and 24 in Mexico City, brought together 30 ministers of culture and highest authorities for a discussion focusing on a range of issues, including culture as an engine for economic growth, employment and development, challenges faced by cultural industries, and culture as a tool for social cohesion and the fight against poverty.

Appearing on the opening morning of the meeting, the delegation presented a declaration to the ministers that was drafted and approved during a two-day meeting of more than 30 representatives of civil society held July 26-27 in Santiago , Chile . Among its recommendations, the declaration urged culture ministers to work to ensure their countries:

• Make a commitment, in the context of international negotiations, not to compromise in the protection of cultural diversity, guaranteeing treatment for cultural goods and services that is differentiated from the logic of the market, as a means of maintaining cultural sovereignty.

And unequivocally support the campaign for a strong convention by UNESCO by undertaking:

• To circulate the recommendations to the ministries of culture of each member country of the OAS in order to reach a consensus on a proposal for changes to achieve an effective and operational instrument that guarantees the true nature of cultural creation and protection, always in a framework of respect for the Universal Declaration of Human Rights.

• We ask the Ministers of Culture and Highest Appropriate Authorities to present this draft convention – the world’s great cultural wager at the start of the new millennium – to the Heads of State and Government, to coordinate with the Ministers of education and the Ministers of Foreign Affairs, and to become involved in the process of preparing a final text of the Convention that assures the sovereign right of States to establish their own cultural policies, that can be approved during the 33rd General Conference of UNESCO in 2005, at the latest. We call for coalitions, civil society networks and representatives of the first peoples of the Americas to be given the opportunity to participate effectively in the process.

The OAS Culture Ministers took up the cultural diversity theme in the declaration issued at the conclusion of their meeting, albeit in a muted fashion that clearly reflected the political dynamic arising from the presence of the United States at the meeting. Notably, in the final version of the draft language affirming the right of States to have cultural policies was diluted to ‘the ability’ in the following paragraph:

“We recognize the ability of States, consistent with international obligations, to adopt or maintain the measures they consider adequate to promote cultural diversity and to take into account the various needs of all actors in the cultural field, including cultural and creative industries, especially in the context of the process of economic liberalization.”

The final wording of the Ministers Declaration was agreed to only after an extended, and exceptional, debate and it is noteworthy that text formally records that “the delegations of Argentina, Antigua and Barbuda, The Bahamas, Barbados, Guyana, Jamaica, St. Kitts and Nevis, and Saint Lucia record reservations regarding this paragraph. Bolivia records a reservation exclusively regarding the phrase "consistent with international obligations." Venezuela records a reservation exclusively regarding the phrase "especially in the context of the process of economic liberalization."

In the process, these delegations were clearly signalling their view that the wording should have been stronger, along the lines of the original draft declaration, and their resistance to the view that an international convention should be subordinated in advance to obligations contained in other international agreements, notably trade agreements.

Robert Pilon, Executive Vice President of the CCD, and Maria Victoria Alcaraz, Director of the Argentina ’s Centro Cultural General San Martin, were nominated to be spokespersons for the civil society delegation. They were joined by James Early of the INCD Steering Committee, Natalio Hernandez of the Asociacion de escritores en lenguas indigenas, Nemesio Juarez of the Argentina Coalition for Cultural Diversity, Erica Smith of the Barbados Copyright Society of Composers, Authors and Publishers, Pedro Querejazu Leyton of the Convenio Andres Bello, as well as Pierre Curzi , Co-chair of the Canadian Coalition for Cultural Diversity, and Gabriel Larrea of the Mexican Coalition .

In a news release issued following the OAS meeting, recently-appointed Minister of Canadian Heritage Minister Liza Frulla reiterated her country’s strong support for a convention on cultural diversity at UNESCO:

“Cultural diversity is about affirming our right to foster and promote our artists, while balancing the need to be open to creative influences from around the world,” the Minister stated. “Every nation has the right to promote the expression of their culture, at home and abroad.”

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Jack Valenti Has Left the Building;
MPAA Successor Now in Place

Jack Valenti has for so long been the public face of the Hollywood studios that it has been difficult to imagine a world where he hasn’t been deploying his famously florid language in an effort to persuade other countries to abandon policies designed to accord a space for domestic movies in favour of unfettered access to their markets by Hollywood blockbusters.

But that day has come. At the age of 82, and after 38 years as the head of the Motion Picture Association of America, Valenti has finally stepped down as President and will be succeeded by Dan Glickman, a former Democratic congressman from Kansas who was secretary of the Department of Agriculture under President Clinton.

During his six years in that post, Glickman was ‘deeply involved in negotiating international trade agreements, earning a reputation as a strong and successful advocate for the U.S. Government and this nation’s agricultural sector,’ according to an MPAA press release.

From the time Valenti joined the MPAA in 1966, the studios’ lobbying often seemed physically embodied by the tireless Valenti, but Glickman will benefit from the strong structural foundation he also developed—which the MPAA itself describes as ‘a small State Department, with a “diplomatic corps” of seasoned professionals installed in six offices all over the world (Brussels, New Delhi, Rio de Janeiro, Singapore, Toronto and Beijing), with sub-offices in other countries.’ Cultural organizations in many countries trying to maintain a meaningful local presence for domestic cinema have experienced first-hand the power of the MPAA lobbying machine, and there is every indication it will remain as formidable in the years to come.

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