Cultural policy

Speech by Mrs. Catherine Trautmann,
French Minister for Culture and Communication
Press Release WTO

On the mandate given to the European Commission to preserve the cultural exception
Thursday, October 28, 1999

The mandate given by the member States to the European Commission in order to prepare for the new round of multilateral commercial negotiations under the best conditions was formally adopted on Tuesday by the Council of Ministers of the member States of the Union. An agreement was, in fact, reached last Friday. The subject is complex and that is why I thought it useful to call you together today. I would ask you to please forgive the somewhat technical content of my remarks, necessitated however by the subject matter.

For several months now, there is no effort I have not made to further the preservation of the cultural exception. I have been exposing my objectives in this matter, which are very ambitious, since the month of July 1999, during a council of Ministers of Culture in Finland. This was the principal reason for my trip to Mexico, to Oaxaca, in September, which allowed me to sensitize 16 Ministers of Culture from the entire world to what is at stake in the upcoming WTO negotiations, and to have a text adopted which asserts the right of States to freely carry out their own cultural and audiovisual policies. I also evoked these objectives from a recent journalistic platform in Le Monde. (The declaration and the article are in the press kit.)

The main difficulty lay in convincing all of our European partners of the necessity of giving a specific mandate to the Commission, who will be in charge of leading the negotiations, under the control of the member States.

Has this objective been reached with the text finally adopted? Have we diluted our wine with water in order to win the case? Are we abandoning cultural exception for the more diffuse notion of cultural diversity? To be clear, am I satisfied with the mandate given to the Commission, as Minister of Culture and Communications, having battled for months in order to obtain the preservation of the cultural exception?

I say to you most emphatically, it is without precedent that the member States of the European Union agree so clearly that the cultural exception should remain the rule. We are incontestably better off than during the previous round. What was acquired from the Marrakech round of negotiations is fine, but was obtained in extremis, at the end of a conflict with the Commissioner, Leon Brittan, who had only one idea in his mind: that the European Community renounce having recourse to the possibilities contained in the WTO treaty on services, to protect certain sectors from liberalization. These possibilities are twofold: that of not taking any obligation of liberalization, and that of requiring exceptions to the most-favored nation clause in order to allow for the preferential treatment of certain States.

To the question: have we attained our objective without relinquishing any of our demands? I therefore answer, yes.

It is perhaps not useless to come back to the texts so that you can compare the results with the objectives that the professionals concerned, who as you know are watchful and have a sense of involvement, and myself have set. Read again, if you like, my speeches and discussion in the press that preceded the negotiation with the Council (in the press kit); also read again the press release "Vigilance Committee concerning the WTO and International Negotiations" of October 6, 1999. What did the vigilance committee want?

I quote: "that in the framework of the upcoming WTO negotiations, the European Union reasserts its refusal to undertake any obligations of liberalization as concerns audiovisual services and maintains its exemptions from the most-favored nation clause". This committee also described itself as "attached to the perpetuity of the European position during the next round of negotiations, whatever themes are to be debated (electronic commerce, subsidies for services, investments, etc.)". These expectations have, I believe, been heard and we are off to a good start in having them realized.

To achieve this end, we have taken the risk of slowing down preparation for the conference in Seattle by refusing an unacceptable text during the Council of General Affairs on October 11. The conflict could have been prolonged much longer, but fortunately our uncompromising attitude with the combined pressure of the timetable, has borne fruit. The last hesitaters preferred not to take the risk of ruining months of efforts, incidentally very productive, by opposing themselves to our legitimate claims.

The "compromise" version (this is the Community jargon used whenever a text is modified) that we refused to accept on October 11 was the following:

"The Council underlines the particular importance of cultural diversity and of maintaining the capacity of member States to promote and develop this diversity. The Union will work in this direction during the upcoming WTO negotiations."

You can imagine that such a version could not satisfy us. The reference to the capacity of the States to promote cultural diversity was much too vague. What we were hoping for was a guarantee that the negotiations would be led as during the previous round of negotiations. Because, for certain States, the obligations of partial liberalization are not incompatible with the necessity of preserving cultural diversity. This reference to the previous round of negotiations was difficult to get accepted.

We were also hoping to maintain the cultural exception whatever the subject debated may be. This is why recourse to a larger formulation than the single reference to the Uruguay negotiations imposed itself. We should obtain that the negotiations will not have a negative impact on the capacity of the Union and the member States to define and to put into practice their cultural and audiovisual policies.

I believe I can say, from the reading of the adopted text, whose content I will recall to you, that we have fully reached our objective, without compromise on the heart of the matter. This text is the following: "The Union will take care, during the upcoming WTO negotiations, to guarantee, as in the Uruguay negotiations, the possibility for the Community and its member States to preserve and develop their capacity to define and put into practice their cultural and audiovisual policies for the preservation of their cultural diversity".

We, of course, specified in the initial version that "policies" was to be understood as regulatory and support instruments, but was that not obvious? Today, policies in cultural and audiovisual matters, within the States and the Union, necessarily include these two aspects. By "to define" their policies, regulations were necessarily aimed at and by "putting into practice ", the unhindered administration of the regulatory instruments.

It seems to me then inappropriate to take the diplomatic expression "compromise" literally, on the sole grounds that the word "instruments" has disappeared. It sounded bad to the ears of certain of our neighbors but, essentially, this word did not contribute any real supplementary guarantee; otherwise, believe me, it would not have disappeared.

The general guidelines fixed by the Council last Friday thus meet our three demands: the declaration of a general objective, namely, the preservation of cultural diversity (I will come back to this controversial expression), guarantees on the methods of negotiation that we wish to keep identical to those, proven, of Marrakech, and the more general declaration, taking into account the scope of the negotiations, that apparently cover not only services, of the necessity to preserve and develop the capacity of the member States and the Union to define and put into practice their cultural policies.

In practice, this means a non-offer of liberalization of the European Union in the cultural or audiovisual sectors, and protection of the latter exemptions from the most-favored nation clause, in order to allow for the preferential treatment of certain States. But the formulation retained offers us even larger guarantees, in particular if new matters should be touched upon, such as investment and subsidies.

Let us not be mistaken, cultural exception has never meant for the 134 member States a WTO legal exclusion for culture and audiovisuals. This objective would, moreover, be unrealistic and dangerous for cultural policies. Unrealistic because this would suppose that all the members States of the WTO are in agreement. This is a treaty which links sovereign States; the European Union can therefore not act on behalf of others. A minority of States wished to liberalize the audiovisual field (19 States out of 134 made offers of liberalization) and therefore, for them, the audiovisual field is in the WTO. For us, on the contrary, the audiovisual field is not and will not be in the sectors coming under the jurisdiction of the WTO, because we have not made liberalization proposals. To be clear, the WTO is an organization of varying geometry: it does not uniformly bind all the States to the same obligations.

. In any case, to search for exclusion and not exception would have been dangerous. It is for this reason that the professionals concerned, and we ourselves, have preferred the proven formula of an absence of obligations. Besides the fact that an exclusion supposes an agreement between 134 countries on what is meant by culture and audiovisuals, with the risk of retaining the lowest common denominator, there would have been great dangers in doing so. In fact, the WTO could then acquire the competency, of which we wanted to deprive it, to clarify the frontiers of the excluded sector. We could not have run the risk of a contentious procedure (a dispute panel, in WTO jargon) which would rule on the point of whether or not we are in the excluded sector.

In the present state of things, the WTO can do nothing against our cultural and audiovisual policies because it can only measure the restriction on free exchange with respect to the obligations taken. If there are no obligations, then by definition there is nothing to measure, nor to sanction. The cultural exception has thus never meant, in my eyes, legal exclusion; otherwise, it would no doubt have been defeated.

I wish to bring up once again for a moment the concept of "cultural exception", to which I have not at all renounced. I moreover deliberately entitled my discussion in Le Monde: "The Cultural Exception is not Negotiable". This expression arose during the previous round of multilateral negotiations which ended in Marrakech in 1994. It means that the European Community and most of the WTO member States (113) have refused to take on any obligations of liberalization in the audiovisual sector, believing it essential to preserve the capacity of States to intervene against eventual questionings by the WTO. The cultural exception is thus the rule and should remain so, the large majority of countries considering that we are not in the presence of an item of merchandise like any other.

The notion of cultural diversity is not being substituted for that of exception. There is neither a semantic slip dissimulating an occult reality, nor an abandonment a fortiori. Quite simply, these two notions are not situated on the same level. By "cultural diversity", what is highlighted is the finality pursued in the negotiation. "Cultural exception" is thus, in my eyes, the non-negotiable means of reaching the objective of cultural diversity.

The expression "cultural diversity" is more recent. It is the fruit of reflection within the framework of UNESCO, ever since the conference in Stockholm in 1998. This new notion is positive, expressing the desire to preserve all the cultures in the world, and not only our own culture, from the risks of uniformity. It is doubtlessly not perfect, but it has the merit of going beyond only the reference to cultural exception, which is just a means. There are ends nobler in their expression that those that consist in saying that one will not take on any liberalization obligations. This is what was aimed at with "cultural diversity". Is it perhaps not still necessary to reflect upon this point to find a better manner in which to define the objective?

Concerning the means, I remain quite attached to the expression "cultural exception", even if it has never figured as such in any treaty. It is of this precious means that one thinks by the formulation: "to lead negotiations, as during the previous round". We must not allow the WTO to have the supervisory right over the European audiovisual and cultural policies, which the mandate given to the Commission guarantees.

It seems important to me to clarify one last point: are we fighting a useless battle by preserving what was acquired in Marrakech, while the real challenges lie elsewhere and we may have underestimated them?

To believe Jack Valenti, the talented president of the Motion Picture Association of America, who expressed himself this weekend at Beaune, the United States no longer has bad intentions towards us: they would accept letting us freely subsidize the audiovisual field. On the other hand, if by chance we should discuss electronic commerce, a sphere that according to Jack Valenti has nothing to do with audiovisuals, in this case, there would be no question of letting us have even the smallest margin of maneuver to hinder the free exchange of immaterial merchandise over the network.

This discourse is dangerous and, believe me, the traps have not escaped us: it is necessary all at the same time to preserve the existing gain which, contrary to his allegations, is indeed menaced, and also to watch out for the risks of circumvention, in particular, via electronic commerce.

As for the existing gain, I leave you to appreciate the pressure the United States exercises at this very moment over States requesting membership to the WTO to undertake the liberalization of audiovisuals. It is evidently a matter of seeing to it that the WTO obligations on States having the vocation of joining the European Union within the framework of its expansion are incompatible with respecting the European Community gains acquired in audiovisual matters. If the Directive on Television without Frontiers supposedly poses no problem, then why such pressure?

Concerning the new items at stake, in particular electronic commerce, you may be sure that we are vigilant. Read again in this light the part of the sentence "to guarantee the possibility for the Community and its member States to preserve and develop their capacity to define and put into practice their cultural and audiovisual policies".

It is exactly in order to prevent the risks of circumvention on matters of this type that we hoped for a larger formulation allowing for room to maneuver in the future, in order to allow for the implementation and unhindered administration of the instruments of audiovisual policies: regulation and financing of public broadcasting, in particular, and support to the programming industries in all their forms. It is equally essential to preserve the different tools of assistance to creation set up in Europe (Directive on Television without Frontiers, MEDIA program, Eurimages), and the preferential agreements on co-production.

As for the development of electronic commerce, it constitutes an important stake in negotiations to come and I would like to evoke this in conclusion, to tell you how attentive I am and how much we had this in mind in the negotiation of the mandate.

It is not certain that negotiations will take place in this domain. But, if such were the case, certain States would no doubt be tempted to exclude the services offered via internet from the service regime, by claiming that we are in the presence of virtual goods, of immaterial merchandise somehow. These transactions would then come under GATT which goes much farther in liberalization than GATS.

The European Union, on the contrary, defends the idea, with the very active support of France, that the mode of transmission of a service modifies nothing in the nature of the latter. This being the case, electronic transactions should be qualified as services.

The principle of technological neutrality is fundamental. It was consecrated during the previous round of negotiations since the totality of audiovisual services, whatever their mode of diffusion, and thus a priori via internet, are covered. Similarly, this principle has been confirmed by the agreement of 1997 on basic telecommunications, which clearly distinguishes between the regime of services and that of the medium.

This is also why it was important to have our attachment to the gain acquired during the previous round recorded, and to negotiate all the room for maneuver necessary for our policies on audiovisual content, whatever the medium may be (as foreseen in the Marrakech agreement).

This is in the interest of all the programming industries. Operators concerned overseas should be aware that this definition needs to be preserved. It is understandable that the content-conveying industries have revealed themselves to be more favorable to the most liberal description, that of goods. However, for the programming industries, is it not necessary to be scrupulously vigilant in protecting works from piracy and to respect intellectual property rights, which guarantee the integrity and the value of works? In fact, only the definition of services ensures the respect of the rights attached to audiovisual works. One cannot claim the same degree of protection for simple merchandise as that for audiovisual services.

We thus begin this negotiation on good foundations: a mandate for preserving the cultural exception which legitimizes the Commission in its resistance to inevitable pressure. We are thus off to a good start. This does not prevent me, of course, from remaining vigilant. This is the reason for which I insisted on going to Seattle.

I also believe it desirable to sensitivize the maximum number of States to the necessity of not giving in on the cultural exception. This is why I also accepted to co-preside a conference at UNESCO next Tuesday, November 2 with my Canadian counterpart, Sheila Copps, on the subject of culture in face of globalization, in the presence of approximately forty Ministers of Culture.

It is important that UNESCO becomes a forum for these issues, in order for the cultural exception to remain the rule for the 113 States that have not undertaken obligations towards the WTO and for all those who apply for membership to the WTO and are subjected to heavy pressure. My battle for cultural exception is thus not over.

The cultural exception is not negotiable by Catherine Trautmann
Published in "Le Monde " October, 11th 1999

Some figures