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Culture and International Trade Law
From Conflict to Coordination
Series: - Nijhoff International Trade Law Series, Volume: 21
Author:
How can policies on trade and culture be coordinated in such a way that both are enabled to flourish? This book makes the argument for moving from viewing trade and culture as "in conflict" to assessing the two fields in coordination—at the domestic, regional and international levels. Juneyoung Lee makes the case for a preference for negotiations and monitoring, as opposed to legalized dispute settlement. Informal law-making processes and preferential trade agreements are also addressed.
Juneyoung Lee, Ph.D. (2013), Geneva Graduate Institute, Switzerland, is currently serving the nexus between environment and trade at the World Trade Organization. She is also an adjunct professor at International Institute in Geneva.
List of Figures and Tables
List of Acronyms and Abbreviations
Introduction
1 The Research Question and This Publication’s Approach
2 The Significance of the Coordinated Framework Proposed in This Publication
3 Limitations of This Publication
4 The Roadmap for This Publication
Part 1
Conceptual and Instituional Approaches to Culture
1 Concept of Culture
1 Introduction: an Ontology of Culture
2 Difficulty in Defining Culture
3 Background – Broad Concept of Culture in Sociology
3.1 Anthropological Elements
3.2 Moral Elements
4 Background – Concept of Culture in
unesco
5 Bringing ‘Culture’ into the Trade Domain
5.1 Critics – Confusingly Undefined or Ill-Defined Culture-Related Terminologies
5.2 Cultural Diversity and Cultural Identity
5.3 Is All Culture the Same? – Categorizations of Culture for the Debate on Trade and Culture – Is Literature Talking about the Same Thing?
6 A Working Scope of Cultural Products in the Debate on Trade and Culture – Spectrum of Cultural Products
6.1 Definition of Cultural Products
6.2 How to Measure Cultural Components in Cultural Products?
6.3 The 2009
unesco
Framework for Cultural Statistics
6.4 Observations and Critiques on the 2009
unesco
Framework for Cultural Statistics
6.5 Spectrum of Cultural Products
7 Concluding Remarks
2 Treatment of Culture in
unesco
1 Introduction
2 The History and Functioning of
unesco
3 Overview of Culture-Related Standard Setting and Terminology in
unesco
4
unesco
Standard Setting Instruments for Removing Trade Barriers to Cultural Goods
5 2005
unesco
Convention on the Protection and Promotion of the Diversity of Cultural Expressions
5.1 Laying the Foundations for the 2005
unesco
Convention
5.2
unesco
Universal Declaration on Cultural Diversity
5.3 Preparation Phase for the 2005
unesco
Convention
5.4 Terminologies of the 2005
unesco
Convention and Their Trade Implications
5.5 The Objectives of the 2005
unesco
Convention
6 Debatable Features of the 2005
unesco
Convention in Relation to Trade
6.1 Article 6 and Article 2.1 of the 2005
unesco
Convention: Policy Space
6.2 Article 20 of the 2005
unesco
Convention: Mutual Supportive, Complementary and Non-subordinate?
6.3 Article 16 of the 2005
unesco
Convention: Facilitation of Cultural Exchanges with Developing Countries
6.4 Article 17 of the 2005
unesco
Convention: Co-operation in Situation of Serious Threat to Cultural Expressions
7 Comparison with the 1972
unesco
World Heritage Convention
8 Concluding Remarks
Part 2
Interaction between Culture and Trade at Domestic, Multilateral, and Preferential Scales
3 Current Situation of Domestic Cultural Policies That Bear Trade Implications
1 Introduction
2 Economic Rationales for Government Interventions in Cultural Products
2.1 Economies of Scale in Producing Cultural Products That Lead to Homogenization of Culture
2.2 Externalities Argument – Existence of Consumption Externalities?
2.3 Public Goods Argument – Are All Cultural Products Public Goods?
2.4 Option Goods, Merit Goods
3 Overview of Tariffs in Cultural Products
4 Overview of Non-tariff Measures in Cultural Products by Key
wto
Members
4.1 European Union
4.1.1 Television without Frontier Directive and Audiovisual Media Services Directive
4.1.2 State Aid – Communication on Certain Legal Aspects Relating to Cinematographic and Other Audiovisual Works
4.2 Canada
4.2.1 Broadcasting Act
4.2.2 Television Broadcasting Regulations 1987
4.2.3 Investment Canada Act
4.3 China
4.3.1 Revenue-Sharing with Joint Ventures, and Annual Quotas in Film Imports
4.3.2 Designated Importers of Movies
4.3.3 Content Examination
4.3.4 Quantitative Time Requirement for Domestic Movies
4.3.5 Tax Incentives
4.4 India
4.4.1 Higher Entertainment Tax on Foreign Films
4.4.2 Tax Incentives
4.5 Korea
4.5.1 Screen Quota System
4.5.2 Import Licensing
4.6 US
4.6.1 Communication Act of 1934
4.6.2 US Congressional Activities
4.6.3 Indian Arts and Crafts Act of 1935
5 Concluding Remarks
4 General Treatment of Culture in the Multilateral Trading System
1 Introduction
2
wto
Law Perspectives
2.1 Overview of the
wto
Legal Provisions and Culture-Related Legal Provisions in the
wto
2.1.1 Overview of the
wto
Legal Provisions
2.1.2 Culture-Related Provisions in the
wto
2.2 Culture-Specific Provisions in the
wto
2.2.1
gatt
Article
iv
on Special Provisions Relating to Cinematograph Films
2.2.2
gatt xx
(f) on Protection of National Treasures of Artistic, Historic or Archaeological Value
2.3 Goods or Services? – Became an Irrelevant Question?
3 Relation between the
wto
Laws and the
unesco
Convention on the Protection and Promotion of the Diversity of Cultural Expression
3.1 Applicability of the
unesco
Convention to
wto
Jurisprudence
3.2
wto
China-Audiovisual Case and the
unesco
Convention
4
wto
Negotiations Perspectives
4.1 Audiovisual Services
4.1.1
wto
Members’ Positions
4.1.2 Advancing Technology and Classification Issues in Audiovisual Services
4.1.3 Subsidies for Audiovisual Services
4.2 Traditional Knowledge and Folklore
5
wto
Administration Perspectives – Governance and Surveillance Instrument for Trade and Culture in the
wto
5.1 Current Situation
5.2 Utilizing Existing Mechanisms
5.3 Co-operation with Other Culture-Related Multilateral Institutions (E.g.
unesco
)
6
wto
Accessions Perspectives – Cultural Concerns during the
wto
Accession Process
7 Concluding Remarks
5 General Treatment of Culture in the Preferential Trade System
1 Introduction
2 Overview on
pta
s Regarding Cultural Products
2.1 Setting the Tone on Cultural Products in
pta
s –
nafta
Model
2.2 Canadian Model
2.3 US Model
2.3.1 Negative List Approach
2.3.2 Emphasis on Digital Products
2.3.3 Unchanged Exclusion of Subsidies
2.4 EU Model
2.4.1 General Exclusion of Audiovisual Services
2.4.2 Protocol on Cultural Cooperation in
pta
s Tied to the 2005
unesco
Convention
2.4.3 Relatively Liberal Approach in Recreation, Cultural and Sporting Services
2.4.4 Standard Inclusion of Possibility of Prohibition or Restriction on Imports, Exports or Goods in Transition on the Grounds of Public Morality or the Protection of National Treasures
2.4.5 Specificities in Individual EU
pta
s
2.5 Chinese Model – First Steps towards Long-Term Engagement
2.6 New Zealand Creative Art Model
3 Overview on Investment Treaties and Protection of Culture
3.1 Southern Pacific Properties (Middle East) Limited v. Arab Republic Egypt
3.2 Parkerings v. Lithuania
3.3 Relevance of the
icsid
Legal Approach for the
wto
Cases
4 Concluding Remarks
Part 3
Coordination between Culture and Trade
6 Ways Forward for Culture and International Trade Law From Conflict to Coordination
1 Analytical Recapitulation of Previous Chapters
1.1 Conceptualization of ‘Culture-Ness’ in Cultural Products
1.2 Institutional Challenge of
unesco
1.3 Striving for Efficacy of the National Cultural Interventions
1.4 Institutional Capability of
wto
on Cultural Issues
2 Specific Suggestions for Ways Forwards: Presenting Options
2.1 Dispute Settlement Approach
2.1.1 Classic – Dispute Settlement in the
wto
2.1.2 Fresh Complement – Informal International Lawmaking
2.2 Non-dispute Settlement Approach
2.2.1 Monitoring
2.2.2 Negotiations
2.2.3 Institutional Coordination
2.3 Plurilateral Agreement on Cultural Products
2.3.1 Dispute Settlement in a Plurilateral Agreement on Trade and Culture
2.4 Innovative Approach in
pta
s
2.4.1 Regional Option 1 –
apec
2.4.2 Regional Option 2 – Council of Europe
2.4.3 New Era of the Discussion on Trade and Culture? – The
eu-us pta
Conclusions
Index
List of Acronyms and Abbreviations
Introduction
1 The Research Question and This Publication’s Approach
2 The Significance of the Coordinated Framework Proposed in This Publication
3 Limitations of This Publication
4 The Roadmap for This Publication
Part 1
Conceptual and Instituional Approaches to Culture
1 Concept of Culture
1 Introduction: an Ontology of Culture
2 Difficulty in Defining Culture
3 Background – Broad Concept of Culture in Sociology
3.1 Anthropological Elements
3.2 Moral Elements
4 Background – Concept of Culture in
5 Bringing ‘Culture’ into the Trade Domain
5.1 Critics – Confusingly Undefined or Ill-Defined Culture-Related Terminologies
5.2 Cultural Diversity and Cultural Identity
5.3 Is All Culture the Same? – Categorizations of Culture for the Debate on Trade and Culture – Is Literature Talking about the Same Thing?
6 A Working Scope of Cultural Products in the Debate on Trade and Culture – Spectrum of Cultural Products
6.1 Definition of Cultural Products
6.2 How to Measure Cultural Components in Cultural Products?
6.3 The 2009
6.4 Observations and Critiques on the 2009
6.5 Spectrum of Cultural Products
7 Concluding Remarks
2 Treatment of Culture in
1 Introduction
2 The History and Functioning of
3 Overview of Culture-Related Standard Setting and Terminology in
4
5 2005
5.1 Laying the Foundations for the 2005
5.2
5.3 Preparation Phase for the 2005
5.4 Terminologies of the 2005
5.5 The Objectives of the 2005
6 Debatable Features of the 2005
6.1 Article 6 and Article 2.1 of the 2005
6.2 Article 20 of the 2005
6.3 Article 16 of the 2005
6.4 Article 17 of the 2005
7 Comparison with the 1972
8 Concluding Remarks
Part 2
Interaction between Culture and Trade at Domestic, Multilateral, and Preferential Scales
3 Current Situation of Domestic Cultural Policies That Bear Trade Implications
1 Introduction
2 Economic Rationales for Government Interventions in Cultural Products
2.1 Economies of Scale in Producing Cultural Products That Lead to Homogenization of Culture
2.2 Externalities Argument – Existence of Consumption Externalities?
2.3 Public Goods Argument – Are All Cultural Products Public Goods?
2.4 Option Goods, Merit Goods
3 Overview of Tariffs in Cultural Products
4 Overview of Non-tariff Measures in Cultural Products by Key
4.1 European Union
4.1.1 Television without Frontier Directive and Audiovisual Media Services Directive
4.1.2 State Aid – Communication on Certain Legal Aspects Relating to Cinematographic and Other Audiovisual Works
4.2 Canada
4.2.1 Broadcasting Act
4.2.2 Television Broadcasting Regulations 1987
4.2.3 Investment Canada Act
4.3 China
4.3.1 Revenue-Sharing with Joint Ventures, and Annual Quotas in Film Imports
4.3.2 Designated Importers of Movies
4.3.3 Content Examination
4.3.4 Quantitative Time Requirement for Domestic Movies
4.3.5 Tax Incentives
4.4 India
4.4.1 Higher Entertainment Tax on Foreign Films
4.4.2 Tax Incentives
4.5 Korea
4.5.1 Screen Quota System
4.5.2 Import Licensing
4.6 US
4.6.1 Communication Act of 1934
4.6.2 US Congressional Activities
4.6.3 Indian Arts and Crafts Act of 1935
5 Concluding Remarks
4 General Treatment of Culture in the Multilateral Trading System
1 Introduction
2
2.1 Overview of the
2.1.1 Overview of the
2.1.2 Culture-Related Provisions in the
2.2 Culture-Specific Provisions in the
2.2.1
2.2.2
2.3 Goods or Services? – Became an Irrelevant Question?
3 Relation between the
3.1 Applicability of the
3.2
4
4.1 Audiovisual Services
4.1.1
4.1.2 Advancing Technology and Classification Issues in Audiovisual Services
4.1.3 Subsidies for Audiovisual Services
4.2 Traditional Knowledge and Folklore
5
5.1 Current Situation
5.2 Utilizing Existing Mechanisms
5.3 Co-operation with Other Culture-Related Multilateral Institutions (E.g.
6
7 Concluding Remarks
5 General Treatment of Culture in the Preferential Trade System
1 Introduction
2 Overview on
2.1 Setting the Tone on Cultural Products in
2.2 Canadian Model
2.3 US Model
2.3.1 Negative List Approach
2.3.2 Emphasis on Digital Products
2.3.3 Unchanged Exclusion of Subsidies
2.4 EU Model
2.4.1 General Exclusion of Audiovisual Services
2.4.2 Protocol on Cultural Cooperation in
2.4.3 Relatively Liberal Approach in Recreation, Cultural and Sporting Services
2.4.4 Standard Inclusion of Possibility of Prohibition or Restriction on Imports, Exports or Goods in Transition on the Grounds of Public Morality or the Protection of National Treasures
2.4.5 Specificities in Individual EU
2.5 Chinese Model – First Steps towards Long-Term Engagement
2.6 New Zealand Creative Art Model
3 Overview on Investment Treaties and Protection of Culture
3.1 Southern Pacific Properties (Middle East) Limited v. Arab Republic Egypt
3.2 Parkerings v. Lithuania
3.3 Relevance of the
4 Concluding Remarks
Part 3
Coordination between Culture and Trade
6 Ways Forward for Culture and International Trade Law From Conflict to Coordination
1 Analytical Recapitulation of Previous Chapters
1.1 Conceptualization of ‘Culture-Ness’ in Cultural Products
1.2 Institutional Challenge of
1.3 Striving for Efficacy of the National Cultural Interventions
1.4 Institutional Capability of
2 Specific Suggestions for Ways Forwards: Presenting Options
2.1 Dispute Settlement Approach
2.1.1 Classic – Dispute Settlement in the
2.1.2 Fresh Complement – Informal International Lawmaking
2.2 Non-dispute Settlement Approach
2.2.1 Monitoring
2.2.2 Negotiations
2.2.3 Institutional Coordination
2.3 Plurilateral Agreement on Cultural Products
2.3.1 Dispute Settlement in a Plurilateral Agreement on Trade and Culture
2.4 Innovative Approach in
2.4.1 Regional Option 1 –
2.4.2 Regional Option 2 – Council of Europe
2.4.3 New Era of the Discussion on Trade and Culture? – The
Conclusions
Index
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