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Cultural Diversity: Canada's UN Victory

A protection the US fought. But will it work?

By Richard Warnica 28 Oct 2005 | TheTyee.ca

Richard Warnica is a free-lance journalist and former senior editor at The Tyee.

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[Part one of a two part series]

They don't name airports after retired ministers of national heritage.

Unlike presidents and prime ministers, the culture dons don't meet up at lecture circuits or tour the world for hurricane relief.

But last week, in a phone call from Paris to Ottawa, two former culture ministers shared a quiet congratulations on a job well done.

On Thursday, at the General Conference of the United Nations Educational, Scientific and Cultural Organization in Paris, 148 countries voted for a new international agreement on cultural diversity: The Convention on the Protection of the Diversity of Cultural Expressions.

A project started by Canadians and championed by the French, the convention aims to opt cultural policies out of trade agreements; to define that books, magazines, songs and movies are not the same as lumber and t-shirts.

But what the convention means and how it will be interpreted aren't clear. Economists, activists, academics and politicians disagree on its purpose, its scope and even its relevance in the digital age.

Headlines around the world played the agreement to be everything from a victory against the McDonaldsization of culture, to an ambiguous and ill-thought instrument of protectionism.

In the lead up to the vote, the United States attacked the convention for emboldening repressive governments and limiting the free flow of ideas and information.

The magazine wars

Sheila Copps was Minister of Canadian Heritage for eight years from the late nineties until 2003. She was in her office in Ottawa last week when her old colleague in Paris called to congratulate her on the live birth of the convention she'd helped conceive seven years before.

Copps laughed about the vehement U.S. opposition. "It's ironic, because if it wasn't for the U.S., we never would have had the instrument in the first place," Copps told The Tyee.

In 1996, the U.S. challenged a Canadian tax on split runs -- American magazines with Canadian ads - at the World Trade Organization, launching what Copps called "the magazine wars."

And when the WTO forced Canada to scrap the tax, it caused a panic in the culture community. It was the first time a Canadian cultural policy was challenged at a trade forum and no one really knew what would be next.

The challenge, "had nothing to do with magazines at all," Copps said. "It was a way of testing our resolve." In other words, if in 1997 the WTO was scrapping a magazine tax, what would they be doing in 1998? How long before Canadian media ownership rules, Canadian content rules and even the CBC were challenged?

Vancouver publisher played role

For Copps, the answer was simple: if international rules were carving away her policy space, she'd need an international forum to get them back. The only problem was, the forum didn't exist. "We [culture ministers] were getting hammered at the WTO and we couldn't even talk about," Copps said.

So a year after the WTO shot down the Canadian tariff, Copps invited culture ministers from around the world to a meeting in Ottawa to discuss cultural policy. It was the first in a series of meetings of the International Network on Cultural Policy (INCP).

At the same time as the INCP was meeting in Ottawa, a group of artists and cultural groups got together to consult on the process. And in a tribute to the inexhaustible ability of international organizations to create confusing acronyms, they became the International Network on Cultural Diversity (INCD).

Between the INCP, the INCD and a group of private sector advisors called SAGIT, a series of drafts of what became the international convention were drawn up, starting in 1999.

But the convention didn't sail smoothly from Ottawa to Paris, according to Copps. "Culture is not very high on the pecking order," Copps said. And much of the lobbying that eventually convinced 148 governments to sign on was done, not by bureaucrats and politicians, but by artists and their bosses.

"The INCD was instrumental in promoting the initiative," Copps said. Private citizens like Vancouver's Scott McIntyre of book publisher Douglas and McIntyre, and Peter Grant, a communications lawyer and former SAGIT member, lobbied colleagues and governments around the world to support the convention.

But the civic sector wasn't exactly a unified force. Sasha Costanza-Chock is a spokesman for the Media Trade Monitor, a website set up by the INCD and another communications NGO that monitored the process. A PhD student at California's Annenberg School of Journalism, Costanza-Chock has been involved for years in a fight against media deregulation in the United States.

In the end neither side got everything they were looking for. On the Trade Monitor website, Costanza-Chock wrote that the NGOs, "successfully lobbied for the elimination of language that would have supported the current extremist copyright regime, but failed to insert references to the importance of the public domain, fair use, and the creative commons."

But the real battle for the convention was with the United States.

U.S. opposition

By the end of the convention process, the most newsworthy part of the whole deal for much of the world was American isolation. Only Israel joined the United States in voting against the convention, while four other countries abstained.

But, as by far the world's top exporter of movies and music, the U.S. has a good reason to be afraid of anything that threatens its markets. In 2000 alone, Hollywood exports brought in nearly US$9 billion, according to a Yale University study.

American opposition was hamstrung, though, because they weren't members, first of the INCP, where the convention started, and later of UNESCO where it ended up. (The US quit UNESCO in 1984, but rejoined in 2003, in time for the later stages of the convention debate)

Treaty with heft?

What's ironic about the US opposition is that, according to a lot of people, the treaty won't really have that much impact. "All these governments are trumpeting this as a huge success, but it's not going to be a bulwark against Hollywood," said Costanza-Chock.

Costanza-Chock called the level of US opposition "bizarre" in an interview with The Tyee, saying that the Americans already stripped the treaty of its most effective clauses.

For one, the convention's final language left its relationship to other trade agreements very ambiguous. Article 20 says both that it should not be subordinate, "to any other treaty," and that it won't modify "rights and obligations of parties under any other treaty." In other words, the treaty is both equal to all other international agreements, but doesn't alter them.

Also, the treaty doesn't really have an effective way of solving disputes, according to Christopher Maule, an economist at Carleton University who has followed trade and culture for decades. "There's no independent body that people have to adhere to," Maule said. "That's not an agreement with any teeth in it."

While the treaty does have a procedure for solving disputes, it doesn't punish anyone for ignoring those procedures. If you break a WTO commitment, you can be fined, but if you don't live up to your obligations under this convention, the worst that could happen would be a global finger-wagging.

But Michael Byers, a professor of political science at the University of British Columbia doesn't see that as a problem. Both in an interview with The Tyee and in a Globe and Mail editorial published last week, Byers argued that the convention was never meant to have a concrete way of settling disputes.

If the framers of the agreement had pushed too hard for a dispute resolution mechanism, Byers said, the treaty would have died years ago. It was, he argued, brilliant strategy to keep a mechanism out.

Besides, he said, the treaty was all about helping countries keep culture out of GATS, the General Agreement on Trade in Services.

Costanza-Chock agrees. "The one thing the convention is good for is to let all the culture groups take the text of the thing and say 'we signed this, you can't commit our audio visual services under GATS."

Battle over 'audio visual services'

International trade is split between two mammoth, Byzantine agreements, one governing goods, the other services. The big difference between the two is that, for goods, everything is considered to be on the table, unless a country explicitly opts it out.

Services works the opposite way. The General Agreement on Trade in Services (GATS) is as a bottom up agreement; until you agree to include a service sector in an agreement with another country, you can regulate it any which way you please.

That's huge, because audio visuals, like television, movies, music and radio are all considered services in trade law. And the world's number one exporter of audio visual services is the United States. "It's trying to influence what people do with the U.S. in bilateral agreements," Maule said.

With the convention in hand, governments may find it easier keep their audio-visuals off the table in the next round of WTO negotiations. And the more countries that do that, the easier it is for France to justify its domestic film quota and Canada its Canadian content rules.

Can quotas still work?

But even if the convention is successful in protecting movie and television quotas, there is no guarantee they can still work in the multimedia age, according to Maule. "You can't have effective quotas if you can just download a movie on the Internet," Maule said.

The same goes for music. While the government can still regulate how much Avril Lavigne or Celine Dion conventional radio stations have to play, they'll have a much harder job doing the same for satellite radio.

The CRTC imposed strict Canadian content rules for three satellite radio providers approved in June. But anyone with an American friend who doesn't mind lending an address can still subscribe to the American only channels.

And in the iPod age, radio, in any format, may not be as influential. Neil Hrab is a former editorial writer at the National Post and a research fellow at the conservative Competitive Enterprise Institute. He wrote an article critical of the convention for Tech Central Station, a free market meets technology news site.

"Thanks to the spread of personal electronic devices and the rise of sites where you can download content from the Internet, will this 'right' to regulate mean anything?" Hrab asked in the article. "If you are serious about protecting your national identity, how many busybodies are you going to need to hire to impose restrictions on what… young people can play on their iPods and personal DVD players?"

Fight's not over yet

Six years gone from the first draft of the cultural convention and a week after 148 countries signed on to it, the battle still isn't over. Before it becomes international law, 30 countries have to ratify the convention, a process that could take anywhere from months to years.

And whether or not it works to keep audio-visuals out of the next round of WTO talks remains to be seen.

But for Sheila Copps, last week's vote was reason enough to celebrate. "This was a fight I personally carried for years," Copps said. And for a politician who spent her career fighting, this one was close enough to a win.

Next week: Part 2: How well does Canada promote media diversity within its borders?

Richard Warnica is a regular contributor to The Tyee.  [Tyee]

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