Newsletter – February 2005

Vol 6 No 2

Contents:

INCD News
Report from Intergovernmental Meetings in Paris
INCD Presentation at INCP Meetings
Report from the World Social Forum
Government Withdraws from Appeal in U.S. Media Ownership Case
Events and Announcements

INCD News

Staffing updates

The INCD is pleased to announce that Mr. Jeeva Rajgopaul has been appointed INCD Coordinator for the Southern African Region. Working from an office in Durban, Mr. Rajgopaul will collaborate with INCD Steering Committee, members and funders, to build INCD membership in the region and to carry the concerns of local members to the international organization. We are pleased to welcome him and look forward to a successful year.

Further African staffing announcements will be made in the upcoming weeks.

INCD Administrator Jennifer Heale will step down in early March to pursue other professional opportunities. Her replacement will be announced in the next newsletter.

INCD Program in Kenya

Peter Musa, an INCD activist from Cameroon, will be holding an information meeting in Nairobi on February 26 at the Hotel Boulevard in Nairobi. The two hour meeting will begin at 9:30 am. The agenda includes an introduction to the INCD and our work in Africa. The session will provide important regional networking opportunities and promote membership in the INCD.

For more information on this project, please contact the secretariat, or directly to Mr. Musa at createartsorg@yahoo.com .

Report from Intergovernmental Meetings in Paris

Reflections of Garry Neil,

INCD Executive Director

PROCESS

I have just returned from a gruelling two week session at UNESCO, where more than 550 delegates from 140 countries, two intergovernmental institutions and 23 Non-Governmental Organizations met to continue negotiations of the draft text of a convention on cultural diversity. I was joined for many of the main sessions by Yvon Thiec, INCD’s European Vice-President, by Steering Committee member Verena Wiedemann for one day, and by several other active INCD members at various times.

Plenary Sessions were held Monday to Saturday in the first week and Monday to Friday in the second week, with the final session adjourning at 16.30 hours on 11 February. The Drafting Committee of 24 members elected in September 2004 met for ten sessions and more than 40 hours, and several informal Working Groups were appointed to consider certain elements of the discussion. The Group considering the sections of the Convention dealing with international cooperation was the largest and most active and worked late into the evenings on several days near the end of the meeting.

FINAL DECISIONS

In the final analysis, the Plenary Session considered all of the Articles of the Draft Convention, although discussion on certain Articles was cursory at best. The Drafting Committee concluded discussions on Articles 1-11 and presented a text with many brackets and footnotes indicating areas of divergent views and continuing discussions, and the Working Group on International Cooperation put forward a complete revision and consolidation of Articles 12 and 14-18, also with notes. While it started very slowly, serious negotiations began at some point in the middle of the process in the Plenary session, in the Drafting Committee, in Working Groups and informally.

Based on all of this, the Intergovernmental Committee of Experts has authorized the Chair of the Plenary, in collaboration with the Chair of the Drafting Committee, the Rapporteur and the Secretariat, to prepare a consolidated text for submission to member states by early March and presentation to the Executive Board at its meeting in April. Based on “the progress made,” the Committee is recommending that a further meeting of the Intergovernmental Committee be convened 23 May to 4 June to conclude a draft treaty for consideration at the General Conference this coming October.

The consolidated text will incorporate the results of the Drafting Committee and the Working Group on International Cooperation. The rest of the text will also contain brackets and notes, since it must be based on “the specific directives of the Plenary …, using … options or footnotes, to take into account different approaches that might require further consideration.”

OVERALL ANALYSIS

The fundamental disagreement is clear. The United States, supported strongly by Australia, Indonesia, Japan, New Zealand, the Philippines, Thailand and by others indirectly, consistently put forward the position that the Convention should not affect commercial trade in cultural goods and services, and commitments made in the context of trade agreements. Many of these delegations were obstructionist in the process, raising questions about virtually every element of the draft. While on the same side, the delegation of India played a different role – they attempted to broker a deal on many of the non-key elements, while being clear in their view that the Convention should not address commercial trade. In the end, all references to “goods and services,” “cultural contents and artistic expressions,” “protect and protection,” will appear in brackets and all mandatory requirements implied by the term “shall” will include the option “should” for later consideration.

These States supported the clause that would make the Convention subordinate to the trade and investment treaties through language providing for no derogation from existing rights and obligations. To avoid any confusion about their goal, the United States included in their definition of “protection” that its use in the Convention “shall not enlarge, diminish, or otherwise affect rights, obligations, or responsibilities of States with respect to trade, investment, or intellectual property rights.”

On the other side, the supporters of the Convention were neither as clear nor as forceful in their work during the sessions. The delegation from Brazil was perhaps the strongest and most consistent at all levels during the two week period, with some effective support from Argentina, Barbados, Benin, Bolivia, Canada, China, Croatia, Cuba, Ecuador, the European Union (through Luxembourg and France), Haiti, Mexico, Nigeria, Norway, Saint Lucia, Senegal, South Africa, Switzerland and others.

However, among the supporters of the Convention, there is some divergence about what elements are essential for an effective treaty. For example, in place of the clear focus of one of the objectives which had been posed as “ensuring wider and more balanced cultural exchanges” and at the insistence of some supporters, the agreed language now adds the concept that this is being done “in favour of a culture of peace.” Also, a new objective on “interculturality” has been added, further diluting the focus. The developing countries also seem to have conceded too readily in the revised sections on international cooperation. All of the agreed language now provides that States “shall endeavour” to do certain things, a weaker version of the previous obligatory commitments.

The supporters of the Convention suffered from the fact that the European Union was required to speak as one, through the generally ineffective delegation of Luxembourg in the Plenary, and through France in the Drafting Committee. Thus, they could speak only once in each debate and the positions they offered had to reflect a consensus in the European delegation, which was difficult to obtain in certain key areas. In keeping track of the number of delegations speaking on each side of key issues, the Chairman seemed initially to forget that Luxembourg was speaking on behalf of the 25 member countries of the EU, and that delegation seemed reticent to remind him forcefully of this fact in each of its interventions. All of this took several days to correct.

Many delegates seemed to be unhappy with the Chairmen of both the Plenary and the Drafting Committee. Neither provided strong leadership on process, allowing hours of useless debate about how to discuss the issues in Plenary or about how to use brackets and footnotes in the Drafting Committee. At the end of substantive debate, the Chairman of the Plenary would sometimes include his own views, despite the fact no delegation had spoken on the particular issue he was raising. There was also a constant struggle between the NGOs and the Chair about access to speaking time. On several occasions, he arbitrarily set a time limit, or limited the number of NGO speakers, despite NGO efforts to coordinate presentations and divide time equitably.

ROLE OF THE INCD

INCD had excellent access to delegations and several actively consulted with us on all of the key issues. Some sought our advice and specific proposals on important matters. We had a direct affect on some of the language used in the report of the Drafting Committee and the Working Group on International Cooperation. We also made five presentations on behalf of the INCD to the Plenary; one on behalf of the INCD, the International Music Council and the International Federation of Musicians; and one on behalf of a large group of NGOs which put forward a common position on Article 11 (the role of civil society).

The International Herald Tribune and the New York Times each had a lengthy article about the meeting (written by Alan Riding) and I was quoted, to the effect that we know what the United States strategy will be: it will negotiate hard to weaken the Convention’s provisions as much as they can and then will refuse to sign it.

EVALUATING THE OUTCOME AGAINST INCD’S OBJECTIVES

At its meeting in October, the INCD Steering Committee outlined three objectives for the Convention. What follows is a preliminary analysis of the results based on these three objectives:

The Convention must acknowledge the broad scope of policy tools that are used to promote cultural diversity and preserve the right of governments to adapt and adopt new ones in the coming years in response to technological developments and changing circumstances and needs.

On this objective, the results are generally positive. In Article 3, the Drafting Committee text provides a broad scope, “the Convention shall apply to the cultural policies and measures by the [States Parties] that [have an impact on] the diversity of [cultural expressions].” In the definitions, the term “cultural policies” is defined as, “… policies, which [address or affect], whether at the local, regional, national or international level, any aspect of the [cultural expressions] of an individual, community, or society, including the creation, production, distribution, dissemination of, and access to [cultural goods and services].” The term “cultural expressions” also continues to be defined broadly. Obviously, several States have registered reservations about all of these clauses.

While there is agreement to delete Annexes I and II which provided an illustrative list of policies and description of cultural goods and services, the definitions which are still in play may provide sufficient scope for future government actions if the stronger of the remaining options is chosen.

The one area of concern is that there is no explicit reference to the heritage sector, for example through recognition of the need to “preserve” cultural expressions. It might still be possible to address this through an expanded article on the right of States to establish public service institutions, which remains in play.

The Convention must be an effective tool for countries of the South to develop their creative capacity and cultural industries, consistent with other UNESCO instruments that recognize and promote the integral relationship of culture and development.

The results on this objective are less satisfactory. As reported above, the Working Group on International Cooperation has drafted language that provides only that States Parties “shall endeavour to” or “shall encourage” certain actions or undertakings. There is no unambiguous obligation on developed countries “to incorporate the dimension of culture in their development policies” or “to support cooperation for sustainable development through fostering the emergence of a dynamic cultural sector.”

Only in the area requiring preferential treatment for the South does slightly stronger language remain in play. “Developed countries shall facilitate cultural exchanges with developing countries by granting, through the appropriate institutional frameworks, preferential treatment to their artists and others cultural professionals and practitioners, as well as to their cultural goods and services …”

The status of the Convention must be equivalent to the trade and investment agreements and must prevail where the Parties are considering cultural policies and cultural diversity.

Discussions around this issue are ongoing. However, a worrisome trend emerged during the sessions.

Articles 13 and 19

The primary debate on this issue has revolved around Article 13, which provides that States should work together in other fora to support the objectives of the Convention and Article 19, which has two options. One version would prohibit derogation from all other international instruments and the other would authorize derogation if cultural diversity was “seriously damaged or threatened” by provisions of other instruments. Both versions prohibit derogation from intellectual property instruments.

There was little substantive discussion of this issue during the Plenary, except for several delegations indicating they were searching for a “third way.” On the final day, the European Union offered a written proposition with four elements:

an obligation to “protect and promote appropriately diversity of cultural expressions,” (sic) in other instruments;
an obligation to respect “the specificity of cultural goods and services” and the provisions of the Convention when they are “interpreting and applying” other instruments;
an obligation to foster mutual supportiveness between the Convention and other instruments; and
a statement that this Convention “shall not be subordinated” to other instruments.

On the face of it, this formulation would seem to be stronger than the limited right to derogate permitted by Option A in the original text.

Balancing rights with obligations

The second element in considering the equivalence of this Convention to trade and investment treaties concerns its basic structure. There will be several strong statements, “reaffirming” the sovereign right of States Parties to implement cultural policies. It will appear in the Objectives, the Principles and in the Rights and Obligations of States Parties. This is positive and is one of INCD’s objectives.

However, what emerged during the meeting was reluctance, even by the strongest supporters of the Convention, to assume any corresponding “obligations.”

The power of trade treaties arises because States make concrete commitments to each other. These can be such things as obligations to reduce tariffs, provide National Treatment, ensure transparency, or agreements to include certain economic sectors in their overall commitments. The need for a dispute settlement system arises as a direct consequence of assuming such obligations.

During the past two weeks, virtually all of the “obligations” provided in the Draft Convention have been challenged and supporters of the Convention were active players in diminishing these obligations. For example, delegations did not agree that their measures would be “transparent,” eliminating the principle and operative provision and replacing it with a requirement merely to “exchange information”. The principle of “free access” has been reduced from an “essential guarantee,” to being described as constituting an “important element for enhancing cultural diversity …”

In addition to the critical principle of respect for human rights and fundamental freedoms, the only principle that remains in play in a manner that would constitute an “obligation” to be assumed by States Parties is the principle of openness and balance. It says, in one of its remaining options, “States, when adopting measures … at the national level, should guarantee, in an appropriate manner, openness to other cultures of the world and ensure that these measures are adapted to the objectives of the present Convention.” Note the use of the word “should” rather than the mandatory “shall.”

The obligations being assumed in the section on international cooperation are also modest, being only in the nature of “endeavouring” to do certain things. Finally, with respect to the obligation to protect vulnerable forms of cultural expressions provided in Article 8, there is serious doubt about whether it will be retained in the final Convention, although it remains in play.

If it continues, this erosion of substantive obligations may well result in a Convention that cannot possibly be equivalent to the trade and investment agreements, because it merely has the effect of reaffirming the sovereign rights of States to do whatever they want in the cultural field. If there are no limits on these rights, or mandatory obligations, there is no basis for any dispute.

This pressure seems to come from two different directions. There are some States supporting the Convention which seem to misunderstand what is necessary to achieve its fundamental purpose, thus they examine each Article in isolation from the others. There are other States supporting the Convention which appear to be content to conclude the Convention merely as a political tool and not an effective barrier to the operation of the trade and investment agreements. Fortunately, there are still a few States which both support the Convention and understand what it must contain to be effective.

The final element in this consideration concerns the follow-up mechanisms in the Convention. Even without substantive obligations, the Convention could still have a reasonable impact if there were a strong commitment from States to continue the discussions about how to protect and promote cultural diversity and how to identify and support vulnerable cultures. But, the States have already agreed to eliminate the Articles establishing a Cultural Diversity Observatory and an Advisory Committee. While there was little consideration in the past two weeks, there is every reason to expect that they are heading toward the elimination of all but a fleeting reference to a “dispute settlement” mechanism. All of this creates a situation in which further substantive action on cultural diversity would need to be driven by efforts from the UNESCO secretariat, which is unlikely to happen.

NEXT STEPS FOR THE INCD

This is a preliminary analysis of the developments of two intense weeks of meetings. As the reflections of others are received and discussed, the challenges and opportunities will no doubt become more focused in the coming weeks.

What is critical is for INCD to remain engaged in the process, since there is still an opportunity to exercise influence over the final outcome. We will need to mobilize our members in key countries before the next meeting of the Intergovernmental Committee in support of certain critical elements, including the section on international cooperation, the Article 13/19 discussion and the nature of obligations that will be assumed by States.

Further information and analysis will be provided in the next few weeks.

INCD Presentation at INCP Meetings

Prior to the UNESCO Inter-governmental Meetings, the INCP Working Group hosted a meeting in Paris which included Civil Society Consultations. The following is the statement made by INCD Steering Committee Member Ludwig Laher who attended the meeting on January 28, 2005.

Scope of the Convention

Concerning the scope of the Convention on cultural contents and artistic expressions, the International Network for Cultural Diversity (INCD) is convinced that, for reasons of precision and practicability, the final Convention should stay within the parameters of the original UNESCO draft. Although we acknowledge the importance of many related matters (e.g. the need to encourage intercultural dialogue), we strongly support a focus on cultural goods and services, that is, on the output of the work of artists, cultural producers and those who distribute, exhibit and preserve their works. These matters are quantifiable, states implement policies in relation to them and these policies can give rise to disputes which should be adjudicated under the terms of the Convention.

With respect to the question of languages in danger of becoming extinct, we believe there should be further discussion about how this matter should be included in the Convention. There may be a benefit to including a specific reference in the Preamble, as some have proposed, and there is obviously a connection with Article 8, the obligation on states to protect vulnerable forms of cultural expression. In this context, we would also like to discuss other possible instruments, including the Convention on intangible cultural heritage.

Media coverage

Within our limited capacities, the INCD has contributed on a national level to relatively broad media coverage of cultural diversity issues and the Convention drafting process all over the world. A few examples of considerable success: South Africa, Mexico, Brazil, China, the German speaking countries and the francophone world. Our Artists Letter, released in 2003, generated some interest. We do regret, however, that there is comparatively little response to our efforts in the international English language press. Positive exceptions like a recent excellent article by the Nigerian INCD convenor in the Guardian and an appearance by INCD’s Executive Director on a BBC World programme, confirm the rule. Even our recent Washington meeting on the Convention with many well-known people participating failed to generate significant media coverage.

We will continue to encourage our member organisations worldwide to use their established relations to the press and the audiovisual media in order to spread information concerning the importance of the Convention. In this respect there can also be very fruitful co-operation with the Coalitions for Cultural Diversity, UNESCO commissions, sympathetic NGOs and others in a number of countries. We would welcome further discussion with you about how to continue to raise the public profile of this work.

General remarks

The INCD repeats its assessment that the INCP should play a key role in developing and promoting the Convention. With regard to the question of when the drafting process should be concluded in order to achieve a timely implementation of the Convention in the context of the WTO negotiations, the INCD has launched an internal discussion which will continue after the conclusion of this intergovernmental meeting.

Report From World Social Forum

Jennifer Heale

INCD Administrator

The INCD, in partnership with the Institute for Cultural Diversity, co-hosted a series of sessions at the World Social Forum which took place in Porto Alegre, Brazil from January 26-31, 2005. The sessions were based on a series of issues affecting cultural diversity. While we had some very good discussions on a wide range of topics, the event was hampered by a lack of infrastructure which had been promised by the Forum. The cancellation of translation and technical equipment left session organizers to find creative solutions to the problems. Consecutive translation was provided by staff and volunteers in order to ensure that the international speakers and audience could effectively communicate with each other.

Despite these problems, there was a reasonable crowd (approximately 50 people) for each of the sessions and many delegates spent the entire day at our event, contributing to good discussions on such topics as Cultural Impact Assessment, Cultural Entrepreneurship and Legal Policy for the Development of Mass Media among others. A notable presentation by Dr. Peter Rantasa from the World Culture Forum Alliance led to questions about the importance of cultural statistics and the inadequacies of current statistical information.

We had excellent representation from Africa at our sessions. Burama Sagnia’s presentation on the INCD Cultural Impact Assessment Project sparked enormous interest from the crowd who were largely unfamiliar with the concept. Edwin Binfon’s presentation on the barriers facing cultural entrepreneurs in the developing world also struck a chord with the largely Brazilian audience, whose colonial history, like Africa’s, continues to influence cultural production. Ms. Fatou Binetou Mbaye from AMARC, the World Association of Community Radio Broadcasters, provided insight into the role of community radio in cultural development.

We were pleased to welcome Steve Buckley from the CRIS campaign who gave a presentation on New Technologies and Cultural Development, specifically examining the links between new and “old” technology. We were also happy to have Clause Michel from the Federation Nationale des Syndicats du Spectacle de l'audivisuel et de l'action culturelle give a presentation on

Several speakers from Brazil’s Institute for Cultural Diversity also contributed greatly to the session and we were very pleased to welcome Sérgio Sá Leitão from the Brazilian Ministry of Culture who presented his government’s view of Public Policy Development. His presentation was followed by Claude Michel from the Federation Nationale des Syndicats du Spectacle de l'Audivisuel et de l'Action Culturelle, who gave the NGO perspective on this topic.

The papers from many of these presentations are now posted in the resources section of the INCD website at http://www.incd.net/resources/papers.html.

Government Withdraws from Appeal in U.S. Media Ownership Case

Jennifer Heale

Administrator

In a major victory for the U.S. media democracy movement, the U.S. government announced in January that the administration will not appeal the September 2003 lower court decision overturning the Federal Communications Commission’s (FCC) proposed loosening of media ownership restrictions. While several media conglomerates (including Viacom, News Corps and Tribune Co.) are pursuing their battle to have the case heard before the Federal Supreme Court, the chance of success without the support of the government is substantially diminished.

The measures in dispute were adopted by the FCC in June 2003, in a vote where the five commissioners split along party lines. The measures eliminated regulations that limited cross-media ownership in U.S. markets and increased the percentage of the total media in one market that could be owned by any one company.

Concrete examples of the proposed changes include changes in the television audience share which can be reached by a single company. The proposals would have increased this percentage from 35 percent to 45 percent. The measures would have allowed a single corporate entity to own as many as three television stations, eight radio stations, one cable operator and a newspaper in one of the countries largest cities. Current regulations prevent a company from owning more than one television station in a single market and prohibit ownership of both a newspaper and a TV or radio station within the same city.

In response to the proposed regulations, the Media Access Project, a non-profit public interest law-firm, asked the courts to review the proposed regulations on behalf of their client, Prometheus Radio Project, a community radio advocacy organization. On the grounds that the FCC had failed to properly analyze the impact of the changes, the Court overturned the new regulations in September 2003.

The Media Access Project’s lawsuit became the centre of a major grass-roots campaign. Two million citizens wrote letters of complaint and mobilized to fight against increased de-regulation, and the threats to cultural diversity, media democracy and quality programming.

In the interim, several major companies acquired additional assets in anticipation of the more relaxed regulations on media ownership. They will now have to apply to the FCC for special permits to allow them to operate in non-compliance with the reinstated limits.

FCC Chairman Michael Powell, son of former Secretary of State Colin Powell, announced he will step down in March and expressed regrets about trying to pass all the measures at one time. Vigilance will be required to ensure his successor does not seek to accomplish the same objectives over the next few years.

**Please note that the information for this article was taken from a variety of media sources which are available upon request.