Protection of cultural diversity and cultural industries in

Protection of cultural diversity and cultural industries in the context of WTO accession; reflection on protection of the Ethnic Minorities LERAP Hanoi JUNE 2005

Outline: Context Issues Arising from Comparative Experience § Cultural Goods and Services § Cultural Impact from Labeling and Advertising § Special Considerations affecting National Minorities International Bilateral and Regional Rules § Current § Future

Context of this Study § Accession of Vietnam to the WTO § Negotiations on the liberalization of the Vietnamese economy § US-Vietnam Bilateral Trade Agreement (BTA) as precedent § Further liberalization will likely be required What is likely to be the impact on Vietnamese cultural industries and measures for cultural protection?

§ Special Interests of National Minorities In addition to Kinh majority, Vietnam has 53 national minorities Do national minorities raise special concerns, special questions, with respect to trade and culture?

Fundamental Issue: Should Vietnam seek to protect cultural interests in trade negotiations? §Trade liberalization may not adversely affect cultural interests in Vietnam. §Protection may limit economic benefits of trade. §Therefore careful weighing needed. §Protection may need to be carefully targeted in specific areas.

§ How to define cultural goods and services? § “High culture” versus “entertainment”? § Cultural products = cultural goods and services § Tangible and intangible creative products § “We know it when we see it” ? § UNESCO and ASEAN Declarations

3. Special Considerations for National Minorities Special Vulnerability for Traditional (especially indigenous) peoples § young may absorb general culture, lose their own culture § minority culture may be commercialized § many statements by indigenous peoples (eg Seattle Declaration of 1999) § some concern in international instruments § ASEAN Declaration § UNESCO Declaration

National Minorities may have unique interests § special knowledge about culture and landscape § special intellectual property concerns (communal rights; over traditional designs and knowledge) National Minorities may have special rights For example: § ASEAN Declaration on Cultural Heritage (2000) § UNESCO Universal Declaration on Cultural Diversity (2001) § United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities

International Instruments Existing Requirements: US – Vietnam BTA: § General: § MFN and National Treatment with respect to goods § Technical regulations not to create unnecessary obstacles to trade § Protection of intellectual property rights § MFN treatment with respect to services § But can permit local trade across a border. § Market Access and National Treatment for certain services § Permission of advertising to facilitate business activity

§ Chapter 4: MFN and NT for investment, but Annex H: 1. Vietnam may adopt or maintain exceptions to the obligation to accord national treatment to covered investments in the sectors or with respect to the matters specified below: Broadcasting, television; production, publication and distribution of cultural products … § Transparency § No specific provision for national minorities

WTO Structure: § GATT: § General: § cultural goods are the same as other goods § MFN for goods § Specific: § Article IV (1947): can limit time for screening foreign films § Article XVIII (1947): government assistance to economic development is okay, when low stage of development § Article XX (1947): protection of public morals; protection of artistic and historic treasures

§ GATS (1995) § General: § MFN opting out § Market Access and National Treatment opting in § Progressive liberalisation § Specific: Canada: § Follows cultural exemption policy § MFN exemption for film and TV co-productions § Did not adopt National Treatment in cultural sector § Result: Canada withheld its cultural policies from GATS, to promote local cultural providers. § But NB: uncertain boundary between cultural goods and services.

§ TRIPS § Copyrights are key element of cultural protection legislation: enforcement priority § ASEAN FTA: § Adopts GATT § Permits protection of public morals, heritage treasures, etc § See ASEAN Declaration (below)

Current and Potential Developments: Evolution of WTO requirements: § General liberalization § Accession generally used to press the liberalization agenda Cultural industries (audiovisual and publishing) difficult to predict: § Some countries, especially USA, are pressing for liberalization § But others, notably France and Canada, strongly support cultural exemptions

Tourism: § APEC: Seoul Declaration on an APEC Tourism Charter (2000) § Supports liberalization under GATS § But “sustainable” management of tourism, including: § protecting the “social integrity” of host communities § recognizing and respecting local and indigenous cultures § China: has agreed to liberalize many travel services Advertising: § United States is pressing for liberalization of advertising under GATS (US proposal to WTO, 2001)

Comparative Provisions of other Agreements: § Canada – US FTA // NAFTA § Cultural exemption, but subject to retaliation Section 1, article 2005 of CFTA: “Cultural industries are exempt from the provisions of this Agreement. ” But other country can impose measures of “equivalent commercial effect” Cultural Industry: “an enterprise engaged in. . . a) the publication, distribution, or sale of books, magazines, periodicals, or newspapers in print or machine-readable form, but not including the sole activity of printing or typesetting any of the foregoing, b) the production, distribution, sale or exhibition of film or video recordings, c) the production, distribution, sale or exhibition of audio or video music recordings, d) the publication, distribution, or sale of music in print or machine readable form, or e) radio communication in which the transmissions are intended for direct reception by the general public, and all radio, television and cable television broadcasting undertakings and all satellite programming and broadcast network services. ”

§ Australia – US FTA (2004) § Reservation permitting Australia to retain: § 55% local content requirement in broadcasting § 80% local content transmission quota on advertising on free-to-air TV § But no general cultural exemption (unlike Australia – Singapore FTA) § Therefore cannot extend protection, eg to new platforms.

Agreements on Cultural Protection: § See APEC Tourism Charter (above) § ASEAN Declaration on Cultural Heritage (2000) § wide definition of culture, including popular culture § obligation to balance materialist culture with affirmation of “human spirituality, creative imagination and wisdom, social responsibility and ethical dimensions of progress” § obligation to protect communal intellectual property and traditional knowledge § allow local, national and regional cultures to control their own development

§ UNESCO Universal Declaration on Cultural Diversity (2001) § Cultural creations must not be treated “as mere commodities or consumer goods” § States should create conditions for cultural diversity to flourish § Draft Convention under preparation

Still to Do: Complete examination of Vietnamese legislation on these matters Preparation of policy options/decisions for Vietnamese decision-makers.