INTRODUCTION
INCD is a worldwide network of artists and creators, cultural NGOs and professional cultural associations, academics and others working to counter the adverse effects of economic globalisation on arts and culture. INCD has 300 members in 71 countries, a number of which are international organisations with a presence in other countries. Our scope is truly global.
Since the concept was first proposed, INCD has been in the forefront of the discussions concerning the content of the Convention. We are pleased the proposed UNESCO Convention endorses a number of our basic principles:
· To ensure that cultural diversity is preserved in the face of challenges posed by rapid technological change, convergence, erosion of distinctions between content and carriage and increasing global concentration of ownership over the production and distribution of cultural content.
· To preserve the sovereign right of all State Parties to take such actions as they consider appropriate to preserve, promote and enhance cultural diversity. The Convention must be legally binding with appropriate dispute settlement provisions and enforcement mechanisms.
· Cultural goods and services must not be treated as mere economic commodities.
· Measures to promote cultural diversity must not violate established international principles on human rights.
· The need for more balance in the international exchange of cultural products and services.
· The need to ensure that civil society is fully engaged in the process of promoting and preserving cultural diversity.
OBJECTIVES FOR AN EFFECTIVE CONVENTION
In addition to these principles, the INCD believes that the Convention must achieve certain fundamental objectives. INCD welcomes the draft prepared by the Expert Panel and the secretariat, but believes the content requires adjustments to meet these objectives.
Objective 1 – STATUS EQUIVALENT TO TRADE AGREEMENTS
Cultural diversity cannot be a lesser objective than those provided in other international instruments. Thus, the rights and obligations in the Convention must prevail where the Parties are discussing cultural policies and cultural diversity. Neither option provided in Article 19 achieves the fundamental objective of ensuring equivalence with other agreements, particularly those dealing with trade and investment treaties. As several government delegations stated at the September Intergovernmental Meeting, it is important that discussion not be limited to these two options.
Article 19 – Relationship to other instruments
INCD urges governments to REJECT Option B, since this would make the new Convention forever subordinate to trade treaties and other international agreements.
INCD urges governments to MODIFY Option A, Clause 2:
“The provisions of this
Convention shall not affect the derogate from existing rights and
obligations of any State Party deriving from any existing other
international instrument, except where the exercise of those rights and
obligations would cause serious damage or threat to be prejudicial to
the diversity of cultural expressions.”
The proposed changes would ensure that the clause allows for derogation where cultural diversity is threatened by a right or obligation that already exists in another instrument. Other Articles, together with the changes proposed in Articles 13 and 21, will ensure that rights and obligations agreed to in future are consistent with the principles and objectives of this Convention.
Further, the threshold to permit derogation from existing rights and obligations should be reduced from the onerous “cause serious damage or threat,” to the lower level of “prejudice.”
INCD notes that Option A, Clause 1 addresses treaties and conventions administered by WIPO, those administered by the WTO and provisions of other treaties, including trade agreements, that cover intellectual property rights. The Clause thus contradicts the fundamental objective of ensuring the Convention has a status equivalent to trade agreements and prevails where cultural diversity is threatened, with respect to the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and to intellectual property provisions in other bilateral and multilateral trade agreements. INCD also notes that Article 7.2 b) otherwise confirms the obligation on State Parties to respect and enforce existing intellectual property rights instruments. INCD would welcome further discussion of this issue.
Article 13 – International consultation and coordination
While the revised Article 19 addresses other existing instruments, it is necessary to ensure that States which are party to the Convention work together in other fora. They must cooperate to prevent the erosion of the principles of cultural diversity in future instruments and to develop a less onerous mechanism than “compensating all foreign services providers” where a State Party needs to modify commitments they have made under trade agreements, such as the General Agreement on Trade in Services, because they have negative consequences for cultural diversity in that country.
Thus, INCD proposes the following changes to Article 13.
“States Parties shall
bear in mind give effect to the objectives of this Convention when
making any international commitments.”
Also, add the following sentence between second and third sentences:
“In particular, State Parties shall co-operate to develop a mechanism through which a State Party may, without penalty or requirements for compensation, modify or qualify a commitment or undertaking it has made for purposes of the General Agreement on Trade in Services or other international trade agreements, to the extent that the exercise of such an obligation has a negative consequence for the objectives and principles of this Convention.”
Article 21 – Intergovernmental Committee
The Convention should also do more to ensure coherence between its objectives and future international agreements. Thus, INCD urges adoption of the following amended Article 21.3(g):
“to establish procedures and other mechanisms for consultation aimed at promoting the principles and objectives of this Convention in other international arenas and to ensure rights and obligations under any other international convention or treaty entered into or amended after this Convention comes into force are consistent with rights and obligations of this Convention.”
Objective 2 – DEVELOPMENT OF CREATIVE CAPACITY AND CULTURAL INDUSTRIES: ACHIEVING MORE BALANCED EXCHANGES BETWEEN CULTURES
The Convention must contain strong measures to support the development of capacity in countries that, while rich in artistic traditions and cultural expressions, do not yet have the capacity to circulate these stories, music and artistic creations in the forms used by developed cultural industries. Developing capacity will assist in achieving the objective of increasing the diversity of cultural contents and providing more choice for consumers in all countries. INCD thus supports the proposals to encourage bilateral partnerships, co-operation agreements and financial and technical assistance. INCD expects that State Parties will implement strong measures anticipated by Article 16(e), including mandatory contributions.
We believe that the Convention should go further. It provides a unique opportunity to make a real difference in this area, by placing an obligation on the developed nations to increase the share of their markets that is occupied by cultural productions from the developing and least developed countries.
Article 17 – Preferential treatment for developing countries
INCD thus urges adoption of the following amended Article 17:
“Developed
countries shall facilitate cultural exchanges with developing countries and
least developed countries by granting appropriate preferential treatment to
their professionals, artists and other creators as well as to their cultural
goods and services.
1. Developed countries shall facilitate cultural exchanges with, and the development of creative capacity and cultural industries within, developing countries and least developed countries by granting preferential treatment to their creators, professionals, artists and cultural goods and services.
2. Each developed country shall commit to increasing the share of its domestic market that is occupied by creators, professionals, artists and cultural goods and services from developing countries and least developed countries. The Intergovernmental Committee, on the advice of the Advisory Group, shall establish within two years of the coming into force of this Convention, the appropriate targets and definitions necessary to implement this obligation and the measurements, tests and benchmarks to ensure adherence. Each developed country shall have five years from the establishment of such targets or from its accession to the Convention, whichever is the latter, to implement such targets. ”
Objective 3 – ACKNOWLEDGE THE FULL SCOPE OF CULTURAL POLICY TOOLS
A range of government policy measures can affect the cultural sector and cultural diversity, including tax measures, competition policies and others. There is also need to ensure that governments can modify policies and implement new ones in light of future technological developments and changing conditions. To ensure that these measures are adequately covered by the provisions of the Convention, INCD proposes the following amendments:
Article 4 – Definitions
Article 4.7:
“’Cultural policies’ refer to policies, whether at the local, regional, national or international level, which address or affect directly or indirectly any aspect of the cultural expressions of an individual, community, …..(balance as in existing draft)”
Article 5 – General rules on rights and obligations
Article 5.2:
“When a State
Party takes a measure that directly or indirectly affects to protect
and promote the diversity of cultural contents and artistic expressions
within its territory, it shall ensure that the measure is in conformity with
this Convention, it’s the objectives, and principles
and scope of this Convention.”
Article 6 – Rights of State Parties at the national level
INCD urges adoption of the following amended section (e) and additional changes to other clauses in the Article:
“e)
measures
which encourage and support public service institutions establish
public service institutions, including public service broadcasters, libraries,
archives, galleries, museums and such other institutions that a State Party
deems to be an institution that performs a public function; define their remit;
provide for their funding in whole or in part; and facilitate and encourage
public access to them.”
In many countries, public service institutions are essential to preserving and promoting cultural diversity and INCD urges the strengthening of the Convention provisions in this respect.
Article 6.2(a)
“measures which in an appropriate manner reserve sufficient space for domestic cultural goods and services among all those available within the national territory, in order to ensure opportunities across all media, platforms, networks and devices, and independent of the technologies used for their production, distribution, dissemination and consumption, and include, where appropriate, provisions relating to the language used for such goods and services;”
This change will ensure that policies can address all media and platforms.
Article 6.2(b)
“measures which guarantee independent cultural industries effective access to the means of producing, disseminating and distributing cultural goods and services; State Parties may implement measures that provide advantages or favour cultural industries that are owned or controlled by its nationals, including measures limiting foreign investments;”
This change acknowledges that States may limit such measures to domestic
enterprises.
Article 6.2(c)
“measures which grant direct or indirect public financial aid; in granting such aid, State Parties may determine the nature, amount and beneficiaries therefore, and may limit access exclusively to its nationals.”
This change ensures that policies which provide indirect financial support are covered by the provisions and also specifically acknowledges that States may limit the support to nationals.
Annex I – Non-exhaustive list of cultural goods and services
INCD believes the scope of legitimate public policies in the Appendices is too narrow, in relation to public service institutions, new media, ownership rules and several other matters. Thus, INCD proposes the following changes:
Annex I, paragraph 6 – Audiovisual and new media
“film, video
recording and digital storage, music, radio and television programmes
independent of the technical means of their production, delivery or
dissemination; entertainment software (video games, educational
programmes, etc.) and educational content; new media;
Internet creativity sites, Internet content relating to the cultural,
social and democratic needs of society; virtual reality; broadband video
broadcasting (video streaming) etc.; radio and television programmes
and services, radio broadcasting services, including broadcasting;
services for the production, distribution, operation, dissemination and
promotion of film, video recording and digital storage; royalties and licence
fees.”
Annex II – Non-exhaustive list of cultural policies
Annex II, Chapter 1.4:
“Promoting
pluralism, cultural and linguistic diversity in and for the information society:
policies that enhance media pluralism and develop community, linguistic
and minority services in public radio and television and on the World Wide Web
and promote content relevant for the democratic, social and cultural needs of
society, including, but not limited to, community, linguistic and minority
services and provided, for example, by public service content providers on
traditional or new platforms, storage devices and networks, including the
Internet; policies that educate and train children in the use of new media
technologies; develop research on the relationship between culture and its
dissemination …” (Balance as in proposed draft).
Annex II, Chapter 1.6 and 1.7 (new language to replace both existing clauses):
“Enhancing and supporting new and traditional media and strengthening cultural industries: support local and national production and distribution on all platforms, networks and devices; ensure plurality of the media through rules on ownership, including rules that prohibit or limit foreign ownership; strengthen existing funding systems and develop innovative new ones; foster complementarity between public and private initiatives; support access to new technologies and new media; training schemes for national specialists, cultural administrators and managers; assisting creators, artists, designers and craftspeople by safeguarding and improving the status of the artist.”
FOLLOW-UP MECHANISMS AND DISPUTE SETTLEMENT
INCD believes it is crucial for governments to provide the follow-up mechanisms with sufficient resources to carry out the tasks assigned to them. INCD also notes that the Intergovernmental Committee and the Advisory Group proposed in Articles 21 and 22 are avenues through which non-governmental organizations could be involved in the process of ensuring the provisions of the Convention are implemented in accordance with its principles and objectives.
INCD believes that the Advisory Group proposal is an essential part of ensuring that Article 11 on the Responsibility and participation of civil society can be more than a declaratory statement.
With respect to the Dispute Settlement system, INCD observes that it is essential for such a system to be included in the Convention. INCD believes the dispute settlement system should allow for adjudication of disputes in a number of situations:
The dispute settlement process should also explicitly permit third party briefs to be filed with the Arbitration Board and the Conciliation Commission.
OTHER PROVISIONS
INCD proposes the following additional amendments on a range of other significant issues:
Article 2.2 – Principle of fundamental freedoms
“Cultural diversity can be protected and promoted only if fundamental freedoms such as freedom of expression, information and communication, and their corollary, pluralism of the media, as well as the ability of individuals to choose cultural expressions, are guaranteed.”
This change highlights the importance to cultural diversity of ensuring pluralism of the media.
Article 4.5 – Cultural Industries
“The term ‘cultural industries’ refers to industries producing, publishing, distributing, exhibiting, collecting, storing, preserving, providing, selling or otherwise dealing with cultural goods and services as defined above.”
This change acknowledges that cultural industries can be involved in far more than merely the act of “producing” cultural goods and services.
Status of the Artist
Artists and creators are at the very heart of a nation’s culture and INCD believes that recognition of their fundamental role is missing from the Convention. The creator or artist must give tangible form to the “expression” for there to be a cultural good or service that can be circulated: without the artist, there is no “cultural content.”
Article 6 – Rights of State Parties at the national level
INCD thus urges the adoption of the following as a new Article 6.2(f):
“f) measures that recognize the fundamental role and importance of the artist and creator in societies and that promote their economic wellbeing and social status in conformity with UNESCO’s Recommendations concerning the Status of the Artist.”
Article 7 – Obligations to promote the diversity of cultural expressions
Article 7.2(c) NEW
“(c) that cultural rights and policies are taken into due account in all of their other policy areas.”
9 November 2004