Diversité culturelle à l'OMC et l'UNESCO à l'exemple du cinéma
SUMMARY CULTURAL DIVERSITY UNDER THE WTO AND UNDER THE UNESCO : THE EXAMPLE OF THE MOVIE INDUSTRY Cultural diversity is a complex matter and the awareness of its full significance among citizens still low. According to the UNESCO Universal Declaration on Cultural Diversity of 2 November 2001, i...
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| フォーマット: | Article ou chapitre numérique |
| 言語: | Français |
| 出版事項: |
2004
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| オンライン･アクセス: | Accès Université d'Orléans et IFPM Accès Université d'Orléans et IFPM |
| 要約: | SUMMARY CULTURAL DIVERSITY
UNDER THE WTO AND UNDER THE UNESCO :
THE EXAMPLE OF THE MOVIE INDUSTRY
Cultural diversity is a complex matter and the awareness of its full significance among
citizens still low. According to the UNESCO Universal Declaration on Cultural Diversity
of 2 November 2001, it is as important as biological diversity. Whereas biological
diversity is essential to the physical existence of humankind, cultural diversity plays a
comparable role with respect to the spiritual and emotional life of individuals and
communities worldwide. There is today a need to coordinate laws and policies on the
national, regional and global level in order to materialize cultural diversity. In the field
of cinema, that shall illustrate the issues and solutions at stake for the purposes of this
paper, market mechanisms have so far failed to preserve and promote cultural diversity.
Cultural diversity can be considered as both a public good and a prerequisite of the
freedom of expression and opinion. As consequence, many states and supranational
bodies such as the European Union and the Council of Europe intervene today in the
audiovisual sector by way of subsidies and other forms of public support. At the same time,
the United States, driven by the oligopoly of the Hollywood Majors, seek to remove, or
at least to reduce to a minimum, such intervention within the WTO, arguing that public
aid distorts competition. In reality, however, one can argue that there is no level playing
field in the audiovisual sector between the Majors’ motion pictures and the ones from
other cultural origins. Overwhelming market domination by Hollywood Majors drives
most competitors out of business.
To avoid a « pensée unique » in cinema and, on the rebound, in literature and music,
states must take action. This paper argues that international agreements containing mere
programmatic and declaratory clauses on cultural diversity will not be sufficient. It
therefore advocates further exploring the potential of competition and intellectual
property laws and policies to contribute to improve the situation. Anti-trust legislation
that is specifically designed for the audiovisual sector may also contribute to create a
level playing field that grants equal opportunities to content producers from various
cultural origins. For the time being, WTO member states remain fully competent to
legislate in this area. When competition rules are set on the negotiation agenda of the
WTO, states advocating cultural diversity in cinema should mobilize to draft an
agreement that is specifically designed to promote cultural concerns by way of
predictable and enforceable rules. With respect to content industries, such an agreement
should work as a legal safeguard against abuses of dominant market positions that may
damage freedom of speech and, eventually, the functioning of democracy.
This contribution outlines the situation of the audiovisual market with a focus on film
industries and the legal issues at stake with respect to cultural diversity. It further
describes the status quo in the WTO, the UNESCO as well as in other relevant
organizations concerning the interactions of culture and trade laws and policies after the
ministerial conference of Cancún of fall 2003. Eventually, it proposes to further explore
an innovative legal framework in order to materialize cultural diversity based on a set of
rules prohibiting the newly introduced concept of « cultural discrimination ». This
approach is inspired by the prohibition of economic discrimination that underlies WTO
law and is articulated in the basic principles of national treatment and most favorite
nation. This approach is intended to establish an institutional dialogue based on case-law
between the WTO and an international organization in charge of cultural matters, for
example the UNESCO.
In this context, legislators should address the issue of intellectual property protection.
High standards of intellectual property protection are incentives to proceed to excessive
marketing expenditures for the Hollywood Majors’ films, and, therefore, detrimental to
films that do not enjoy comparable investments to accede to the audience. In this sense,
too much copyright and trade mark protection contributes to drive films from other
cultural origins than the dominant one out of competition. On the other hand, certain
standards of protection in the form of authors’ rights should remain in place as incentive
for creativity and in order to guarantee to filmmakers more independence from subsidies
granted by, and from corresponding control of, the state. Legislators who are eager to
promote cultural diversity in cinema will therefore have the task of finding a new balance
with respect to the standards of intellectual property protection. The TRIPs agreement
should provide flexibility to achieve this goal.
In the light of these considerations, this paper provides a critical assessment and
recommandations with respect to the preliminary draft International Convention on the
Protection of the Diversity of Cultural Contents and Artistic Expressions of July 2004 that
was submitted by a group of experts in cultural diversity set up by the Director-General
of the UNESCO. |
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