Protection of cultural diversity and cultural Protection of cultural diversity and cultural industries in the context of WTO accession; industries in the context of WTO accession;

reflection on protection of the Ethnic reflection on protection of the Ethnic MinoritiesMinorities

LERAPLERAP

HanoiHanoi

JUNE 2005JUNE 2005

OutlineOutline::

ContextContextIssues Arising from Comparative ExperienceIssues Arising from Comparative Experience Cultural Goods and ServicesCultural Goods and Services Cultural Impact from Labeling and Cultural Impact from Labeling and

AdvertisingAdvertising Special Considerations affecting National Special Considerations affecting National

MinoritiesMinoritiesInternational Bilateral and Regional RulesInternational Bilateral and Regional Rules CurrentCurrent FutureFuture

Context of this StudyContext of this Study

Accession of Vietnam to the WTOAccession of Vietnam to the WTO Negotiations on the liberalization of the Negotiations on the liberalization of the

Vietnamese economyVietnamese economy US-Vietnam Bilateral Trade Agreement (BTA) as US-Vietnam Bilateral Trade Agreement (BTA) as

precedentprecedent Further liberalization will likely be requiredFurther liberalization will likely be required

What is likely to be the impact on Vietnamese What is likely to be the impact on Vietnamese cultural industries and measures for cultural cultural industries and measures for cultural protection?protection?

Special Interests of National MinoritiesSpecial Interests of National Minorities

In addition to Kinh majority, Vietnam has 53 In addition to Kinh majority, Vietnam has 53 national minoritiesnational minorities

Do national minorities raise special Do national minorities raise special concerns, special questions, with respect concerns, special questions, with respect to trade and culture?to trade and culture?

Fundamental Issue:Fundamental Issue:

Should Vietnam seek to protect cultural Should Vietnam seek to protect cultural interests in trade negotiations?interests in trade negotiations?Trade liberalization may not adversely Trade liberalization may not adversely

affect cultural interests in Vietnam.affect cultural interests in Vietnam.Protection may limit economic benefits Protection may limit economic benefits

of trade.of trade.

Therefore careful weighing needed.Therefore careful weighing needed.Protection may need to be carefully Protection may need to be carefully

targeted in specific areas.targeted in specific areas.

How to define cultural goods and How to define cultural goods and services?services?

““High culture” versus “entertainment”?High culture” versus “entertainment”?

Cultural products = cultural goods and Cultural products = cultural goods and servicesservices

Tangible and intangible creative productsTangible and intangible creative products

““We know it when we see it” ?We know it when we see it” ?

UNESCO and ASEAN DeclarationsUNESCO and ASEAN Declarations

3.3. Special Considerations for Special Considerations for National MinoritiesNational Minorities

Special Vulnerability for Traditional Special Vulnerability for Traditional (especially indigenous) peoples(especially indigenous) peoples young may absorb general culture, lose their young may absorb general culture, lose their

own cultureown culture minority culture may be commercializedminority culture may be commercialized many statements by indigenous peoples (eg many statements by indigenous peoples (eg

Seattle Declaration of 1999)Seattle Declaration of 1999) some concern in international instrumentssome concern in international instruments

ASEAN DeclarationASEAN Declaration UNESCO DeclarationUNESCO Declaration

National Minorities may have unique interestsNational Minorities may have unique interests special knowledge about culture and landscapespecial knowledge about culture and landscape special intellectual property concerns (communal special intellectual property concerns (communal

rights; over traditional designs and knowledge)rights; over traditional designs and knowledge)

National Minorities may have special rightsNational Minorities may have special rightsFor example:For example: ASEAN Declaration on Cultural Heritage (2000)ASEAN Declaration on Cultural Heritage (2000) UNESCO Universal Declaration on Cultural UNESCO Universal Declaration on Cultural

Diversity (2001)Diversity (2001) United Nations Declaration on the Rights of United Nations Declaration on the Rights of

Persons Belonging to National or Ethnic, Persons Belonging to National or Ethnic, Religious and Linguistic MinoritiesReligious and Linguistic Minorities

International InstrumentsInternational InstrumentsExisting Requirements:Existing Requirements:

US – Vietnam BTA:US – Vietnam BTA: General:General:

MFN and National Treatment with respect to goodsMFN and National Treatment with respect to goods Technical regulations not to create unnecessary Technical regulations not to create unnecessary

obstacles to tradeobstacles to trade Protection of intellectual property rightsProtection of intellectual property rights MFN treatment with respect to servicesMFN treatment with respect to services

But can permit local trade across a border.But can permit local trade across a border. Market Access and National Treatment for certain Market Access and National Treatment for certain

servicesservices Permission of advertising to facilitate business activityPermission of advertising to facilitate business activity

Chapter 4: MFN and NT for investment, Chapter 4: MFN and NT for investment, but Annex H:but Annex H:1. Vietnam may adopt or maintain exceptions 1. Vietnam may adopt or maintain exceptions

to the obligation to accord national treatment to the obligation to accord national treatment to covered investments in the sectors or with to covered investments in the sectors or with respect to the matters specified below: respect to the matters specified below:

Broadcasting, television; production, Broadcasting, television; production, publication and distribution of cultural publication and distribution of cultural products …products …

TransparencyTransparency No specific provision for national No specific provision for national

minoritiesminorities

WTO Structure:WTO Structure: GATT:GATT:

General: General: cultural goods are the same as other goodscultural goods are the same as other goods MFN for goodsMFN for goods

Specific:Specific: Article IV (1947): can limit time for screening foreign Article IV (1947): can limit time for screening foreign

filmsfilms Article XVIII (1947): government assistance to Article XVIII (1947): government assistance to

economic development is okay, when low stage of economic development is okay, when low stage of developmentdevelopment

Article XX (1947): protection of public morals; Article XX (1947): protection of public morals; protection of artistic and historic treasuresprotection of artistic and historic treasures

GATS (1995)GATS (1995)

General:General: MFN opting outMFN opting out Market Access and National Treatment opting inMarket Access and National Treatment opting in Progressive liberalisationProgressive liberalisation

Specific:Specific:Canada:Canada:

Follows cultural exemption policyFollows cultural exemption policy MFN exemption for film and TV co-productionsMFN exemption for film and TV co-productions Did not adopt National Treatment in cultural sectorDid not adopt National Treatment in cultural sector Result: Canada withheld its cultural policies from Result: Canada withheld its cultural policies from

GATS, to promote local cultural providers.GATS, to promote local cultural providers. But NB: uncertain boundary between cultural But NB: uncertain boundary between cultural

goods and services.goods and services.

TRIPSTRIPS

Copyrights are key element of cultural protection Copyrights are key element of cultural protection legislation: enforcement prioritylegislation: enforcement priority

ASEAN FTA:ASEAN FTA: Adopts GATTAdopts GATT Permits protection of public morals, heritage treasures, Permits protection of public morals, heritage treasures,

etcetc See ASEAN Declaration (below)See ASEAN Declaration (below)

Current and Potential Developments:Current and Potential Developments:

Evolution of WTO requirements:Evolution of WTO requirements: General liberalizationGeneral liberalization Accession generally used to press the Accession generally used to press the

liberalization agendaliberalization agenda

Cultural industries (audiovisual and publishing) difficult to Cultural industries (audiovisual and publishing) difficult to predict:predict: Some countries, especially USA, are pressing for Some countries, especially USA, are pressing for

liberalizationliberalization But others, notably France and Canada, strongly But others, notably France and Canada, strongly

support cultural exemptionssupport cultural exemptions

Tourism:Tourism: APEC: Seoul Declaration on an APEC Tourism Charter APEC: Seoul Declaration on an APEC Tourism Charter

(2000)(2000) Supports liberalization under GATSSupports liberalization under GATS But “sustainable” management of tourism, including:But “sustainable” management of tourism, including:

protecting the “social integrity” of host communitiesprotecting the “social integrity” of host communities recognizing and respecting local and indigenous culturesrecognizing and respecting local and indigenous cultures

China: has agreed to liberalize many travel services China: has agreed to liberalize many travel services

Advertising:Advertising: United States is pressing for liberalization of advertising United States is pressing for liberalization of advertising

under GATS (US proposal to WTO, 2001)under GATS (US proposal to WTO, 2001)

Comparative Provisions of other Agreements:Comparative Provisions of other Agreements:

Canada – US FTA // NAFTA Canada – US FTA // NAFTA Cultural exemption, but subject to retaliationCultural exemption, but subject to retaliation

Section 1, article 2005 of CFTA: “Cultural industries are exempt Section 1, article 2005 of CFTA: “Cultural industries are exempt from the provisions of this Agreement.” But other country can from the provisions of this Agreement.” But other country can impose measures of “equivalent commercial effect”impose measures of “equivalent commercial effect”

Cultural Industry: “an enterprise engaged in ... a) the publication, Cultural Industry: “an enterprise engaged in ... a) the publication, distribution, or sale of books, magazines, periodicals, or newspapers in distribution, or sale of books, magazines, periodicals, or newspapers in print or machine-readable form, but not including the sole activity of print or machine-readable form, but not including the sole activity of printing or typesetting any of the foregoing, b) the production, distribution, printing or typesetting any of the foregoing, b) the production, distribution, sale or exhibition of film or video recordings, c) the production, sale or exhibition of film or video recordings, c) the production, distribution, sale or exhibition of audio or video music recordings, d) the distribution, sale or exhibition of audio or video music recordings, d) the publication, distribution, or sale of music in print or machine readable publication, distribution, or sale of music in print or machine readable form, or e) radio communication in which the transmissions are intended form, or e) radio communication in which the transmissions are intended for direct reception by the general public, and all radio, television and for direct reception by the general public, and all radio, television and cable television broadcasting undertakings and all satellite programming cable television broadcasting undertakings and all satellite programming and broadcast network services.”and broadcast network services.”

Australia – US FTA (2004)Australia – US FTA (2004)

Reservation permitting Australia to retain:Reservation permitting Australia to retain: 55% local content requirement in broadcasting55% local content requirement in broadcasting 80% local content transmission quota on 80% local content transmission quota on

advertising on free-to-air TVadvertising on free-to-air TV

But no general cultural exemption (unlike Australia – But no general cultural exemption (unlike Australia – Singapore FTA)Singapore FTA) Therefore cannot extend protection, eg to new Therefore cannot extend protection, eg to new

platforms.platforms.

Agreements on Cultural Protection:Agreements on Cultural Protection:

See APEC Tourism Charter (above)See APEC Tourism Charter (above)

ASEAN Declaration on Cultural Heritage (2000)ASEAN Declaration on Cultural Heritage (2000) wide definition of culture, including popular culturewide definition of culture, including popular culture obligation to balance materialist culture with obligation to balance materialist culture with

affirmation of “human spirituality, creative imagination affirmation of “human spirituality, creative imagination and wisdom, social responsibility and ethical and wisdom, social responsibility and ethical dimensions of progress”dimensions of progress”

obligation to protect communal intellectual property obligation to protect communal intellectual property and traditional knowledgeand traditional knowledge

allow local, national and regional cultures to control allow local, national and regional cultures to control their own developmenttheir own development

UNESCO Universal Declaration on Cultural UNESCO Universal Declaration on Cultural Diversity (2001)Diversity (2001)

Cultural creations must not be treated “as mere Cultural creations must not be treated “as mere commodities or consumer goods”commodities or consumer goods”

States should create conditions for cultural diversity to States should create conditions for cultural diversity to flourishflourish

Draft Convention under preparationDraft Convention under preparation

Still to Do:Still to Do:

Complete examination of Vietnamese Complete examination of Vietnamese legislation on these matterslegislation on these matters

Preparation of policy options/decisions for Preparation of policy options/decisions for Vietnamese decision-makers.Vietnamese decision-makers.