Culture and International Trade Law

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

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