Culture and International Trade Law: From Conflict to Coordination

Description

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. Front Cover Half Title Series Information Title Page Copyright Page Contents Foreword Acknowledgements Figures and Tables 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 Institutional Approaches to Culture Chapter 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 Chapter 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: Cooperation 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 Chapter 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 4.1.1.1 Conditions for European Works in the Television without Frontier Directive and in the Audiovisual Media Services Directive 4.1.1.2 Financial Contributions for European Works 4.1.1.3 Minimum Time/Budget Reservations for European Works 4.1.2 State Aid – Communication on Certain Legal Aspects Relating to Cinematographic and Other Audiovisual Works 4.1.2.1 Cultural Content Condition in Subsidies 4.2 Canada 4.2.1 Broadcasting Act 4.2.1.1 Canadian Content and Canadian Ownership 4.2.2 Television Broadcasting Regulations 1987 4.2.2.1 License Based on Canadian Programme Condition 4.2.3 Investment Canada Act 4.2.3.1 Different Investment Treatment for Cultural Business 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 4.6.1.1 Limitations on Foreign Ownership 4.6.2 US Congressional Activities 4.6.3 Indian Arts and Crafts Act of 1935 5 Concluding Remarks Chapter 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 2.1.1.1 GATT 2.1.1.1.1 MFN Treatment 2.1.1.1.2 National Treatment 2.1.1.1.3 Tariff Concessions 2.1.1.1.4 Prohibitions of Quantitative Restrictions 2.1.1.1.5 Trade Remedies against Unfair Trade – ‘Anti-dumping Measures’ 2.1.1.1.6 Trade Remedies against Fair Trade – ‘Safeguard Measures’ 2.1.1.1.7 State Trading Enterprises 2.1.1.2 GATS 2.1.1.2.1 MFN Treatment 2.1.1.2.2 MFN Exemptions – an Escaping Tool? 2.1.1.2.3 National Treatment/Market Access 2.1.1.2.4 Domestic Regulations 2.1.1.3 TRIPS 2.1.2 Culture-Related Provisions in the WTO 2.1.2.1 Like Products, ‘Culturally Like’ Products? 2.1.2.2 The Agreement on Subsidies and Countervailing Measures (SCM Agreement) and Cultural Subsidies 2.1.2.2.1 Prohibited Subsidies 2.1.2.2.2 Actionable Subsidies 2.1.2.2.3 Non-actionable Subsidies 2.1.2.2.4 Countervailing Measures 2.1.2.3 Public Morals in GATT XX (a) and GATS XIV (a) 2.1.2.3.1 Legislative History 2.1.2.3.2 Jurisprudences: the Two Most Relevant WTO Disputes 2.1.2.3.3 US-Gambling Case 2.1.2.3.4 China-Audiovisuals Case 2.1.2.4 Geographical Indications 2.2 Culture-Specific Provisions in the WTO 2.2.1 GATT Article IV on Special Provisions Relating to Cinematograph Films 2.2.1.1 Legislative History of GATT Article IV 2.2.1.2 Evolution – Extension of Article IV to Television Programming? 2.2.1.3 Current Implication of GATT Article IV 2.2.1.4 Legal Application of GATT Article IV 2.2.2 GATT XX (f) on Protection of National Treasures of Artistic, Historic or Archaeological Value 2.2.2.1 Legal Application of GATT Article XX (f) 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-Audiovisuals 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 Cooperation with Other Culture-Related Multilateral Institutions (E.g. UNESCO) 6 WTO Accessions Perspectives – Cultural Concerns during the WTO Accession Process 7 Concluding Remarks Chapter 5 General Treatment of Culture in the Preferential Trade System 1 Introduction 2 Overview on PTAs 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 2.4.2.1 Criticisms of the EU Approach to Preferential Trade Negotiations Linked 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 Chapter 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 2.1.1.1 Classical Dispute Settlement Approach Yet through Evolutionary Interpretation 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 Bibliography Primary Sources Treaties Official Documents Cases Websites News Secondary Sources Books Articles Publication Reports Index Back Cover