Implementing the UNESCO Convention on Cultural Diversity in the European Union

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Implementing the UNESCO Convention on Cultural Diversity in the European Union A Study by Germann Avocats and its multidisciplinary research team www.diversitystudy.eu 01/06/2010 PowerPoint Presentation (edit title in master) 1

Overview: A Study on three pillars Fact finding mission and discussions on www.diversitystudy.eu Short Version of the Study: Part I on facts and stakeholders opinons (questionnaires) Part II on new ideas (intellectual property and competition, civil society and cultural genocide prevention) Part III on EU s external relations Part IV on EU s internal policies Part V with conclusions and recommendations Long version (Study Papers for Parts I to IV) 01/06/2010 PowerPoint Presentation (edit title in master) 2

Originality of the Study Critical approach towards intellectual property and selective state aid: Some copyright, but not too much Clear separation between state and culture Reform the system: cultural sector specific competition law and non-discrimination principles Cultural Treatment and Most Favored Culture (CT & MFC) Induce market dominating corporations to promote diversity of cultural expressions Beyond cultural goods and services: early prevention of mass atrocities and genocide 01/06/2010 PowerPoint Presentation (edit title in master) 3

Challenges for European policy makers De facto soft law, but policy tool with great potential Absence of formal discussions at the WTO EU supported US in WTO litigation against China concerning cultural industries without formal discussion Coherence in regional and bilateral agreements (Cultural Cooperation Protocols) towards a plurilateral reference agreement? Lessons from existing initiatives: ACP film fund and internal programmes Institutional design: stock taking, synergies, new bodies 01/06/2010 PowerPoint Presentation (edit title in master) 4

Opportunities and threats for private and public stakeholders The UNESCO Convention provides considerable space for civil society's participation. Policy makers can enrich their political programmes and enlarge their constituencies. If policy makers only listen to the economically strongest and loudest actors, they will fail in materialising those features of the Convention that we consider the most valuable. 01/06/2010 PowerPoint Presentation (edit title in master) 5

A good governance tool for policy makers and civil society activists Translate the Convention on cultural diversity into a new treaty to promote human diversity Maximize the wealth, and settle tensions resulting from the diversity of cultural, political, ethnical, religious and national expressions Immunize civil society against conflict entrepreneurs 01/06/2010 PowerPoint Presentation (edit title in master) 6

The UNESCO Convention on cultural diversity: A limited free pass Article 5 General rule regarding rights and obligations 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. 01/06/2010 PowerPoint Presentation (edit title in master) 7

The UNESCO Convention on cultural diversity: A limited free pass Article 5 General rule regarding rights and obligations 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. 01/06/2010 PowerPoint Presentation (edit title in master) 8

Principles of equitable access, openness, balance, solidarity, cooperation and sustainable development Legal safeguards against the worst case scenarios: Cultural imperialism or colonialism (diktat of the politically and economically strongest) Cultural piracy (by analogy to biopiracy) Cultural protectionism and relativism (versus cultural diversity and universality of human rights and fundamental freedoms) Cultural genocide (destruction of a human group as such by destroying its cultural expressions) 01/06/2010 PowerPoint Presentation (edit title in master) 9

A cultural interest 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, 01/06/2010 PowerPoint Presentation (edit title in master) 10

A democratic interest 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 other universally recognized instruments, 01/06/2010 PowerPoint Presentation (edit title in master) 11

An ecomonic interest Making money locally Trade and culture 01/06/2010 PowerPoint Presentation (edit title in master) 12

Sharing the cake Shall we share? With whom shall we share? Who shall share? How shall we share? 01/06/2010 PowerPoint Presentation (edit title in master) 13

Just a very little piece of the cake for European SMEs and the Global South s cultural goods and services 01/06/2010 PowerPoint Presentation (edit title in master) 14

Playing Duopoly : Third parties cultural expressions between a rock and a hard place High intellectual property protection (copyright, trademarks, etc.) No adequate competition law Automatic state aid (quotas, etc.) Selective state aid ( expertocracy ) Photo: Pierre-Yves Sabas 01/06/2010 PowerPoint Presentation (edit title in master) 15

Copyright and cultural diversity The rule of the loudest for pharma and film majors: 40% to make (R&D, creativity), 60% to sell (marketing) 100% protected by patents, copyright and trademarks, respectively USD 60 mil. for ad per film drives providers of cultural expressions without competitive publicity out of the market (Euro 15 mio Media Mundus) The same rule applies to books, music, etc. 01/06/2010 PowerPoint Presentation (edit title in master) 16

Keep some copyright, but not too much, and replace selective state aid by an automatic one Copyright Safeguard for the creators autonomy Adequate competition law balances copyright Combine with cultural non-discrimination principles CT and MFC Selective state aid Experts' good or bad taste is not justiciable : De gustibus non est disputandum Risk of covert censorship and incentive for clientelism and exclusion Bad inspiration for authoritarian regimes 01/06/2010 PowerPoint Presentation (edit title in master) 17

Integration requires cultural diversity The UNESCO Convention provides a new instrument with the potential to render the European integration substantially wealthier, more profound and sustainable. In the European Union's external relations, genuine protection and promotion of the diversity of cultural expressions can contribute to improving world integration in order to secure peace and social welfare as existential complements to mere economic globalisation. 01/06/2010 PowerPoint Presentation (edit title in master) 18

A European interest Jean Monnet: Si c était à recommencer, je commencerais par la culture. Cultural clause in the Treaty of Lisbon 01/06/2010 PowerPoint Presentation (edit title in master) 19

Coal and steel now call for culture 01/06/2010 PowerPoint Presentation (edit title in master) 20

Annex: Survey at www.diversitystudy.eu Goal gather data regarding implementation practices of the UNESCO Convention Method survey questionnaires disseminated across diverse national and regional jurisdictions Outcome broad participation; gathered rich data from stakeholders; highly valuable to the Study s analysis 01/06/2010 PowerPoint Presentation (edit title in master) 21

Survey questionnaire (three types): 1. Civil Society Questionnaire Civil society groups National Coalitions for Cultural Diversity 2. Legal Questionnaire National UNESCO Commissions (in EU Member States) Law and consultancy firms (in non-eu Member States) 3. Regional Organisation Questionnaire Regional organisations Interview questionnaire: International organisations (EU, UNCTAD, UNESCO, WIPO, WTO) 01/06/2010 PowerPoint Presentation (edit title in master) 22

Response to the survey questionnaires Contacted 45 entities: Civil society groups (17) National UNESCO Commissions (13) Law and consultancy firms (6) Regional organisations (9) Response rate: 27 participants / respondents 60% overall; above 30% target for each grouping 01/06/2010 PowerPoint Presentation (edit title in master) 23

1 The European Commission responded on behalf of the European Community 01/06/2010 PowerPoint Presentation (edit title in master) 24

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