Christopher M. Bruner (Texas Tech University School of Law) has posted Culture, Sovereignty, and Hollywood: UNESCO’s Convention on the Protection and Promotion of the Diversity of Cultural Expressions and the Future of Trade in Cultural Products on SSRN. Here is the abstract:
On October 20, 2005, the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted an extraordinary treaty – by a vote of 148-2, with 4 abstentions – that legitimates domestic legal measures aimed at the protection of local producers of cultural activities, goods and services. Opposed by the United States and Israel, the Convention represents a major diplomatic victory for Canada and France, the UNESCO Convention’s principal proponents, and a major blow to Hollywood and the United States, audiovisual products being among America’s most lucrative exports. Both Canada and France, like many countries around the world, have long maintained a range of cultural protectionist measures aimed at stemming the dominance of U.S. media – principally Hollywood films – in their domestic markets. The Convention has been attacked as vague and susceptible to abuse, however, by U.S. officials arguing that it could serve as a pretext for infringements of speech and related human rights, and that it could destabilize the international trading system.
This paper aims to identify the UNESCO Convention’s true legal and diplomatic significance. Starting with a brief look at conceptions of culture, the paper examines the treatment of cultural products under various multilateral, regional, and bilateral trade regimes. The paper then traces the history of UNESCO and its efforts toward the preservation of cultural diversity, as well as the United States’ cool relationship with this UN body. The origins, negotiation and drafting of the UNESCO Convention are examined in detail, with special attention paid to the efforts of Canada, France, and the European Union to ensure its adoption. The paper concludes that the UNESCO Convention will likely have little effect on existing trade obligations, but that it will have a significant impact on future negotiations toward greater audiovisual liberalization under the WTO system – a major trade policy goal of the United States.
The efficacy of the Culture Convention as a means of resisting audiovisual trade liberalization will ultimately depend on the perceived normative legitimacy of the broader argument for the protection of cultural diversity through domestic protectionist measures. The concluding sections of the paper address the trade and culture debate in these broader terms. Based upon an examination of the media market, Hollywood’s prevailing business model, and the construction of trade rhetoric and deployment of human rights arguments by U.S. trade negotiators and corporate interests, the paper advances the argument that the burden remains squarely on the United States to demonstrate that the liberalization of trade in cultural products is in fact necessary or desirable.