Diversité culturelle à l'OMC et l'UNESCO à l'exemple du cinéma

CULTURAL DIVERSITY UNDER THE WTO AND UNDER THE UNESCO : THE EXAMPLE OF THE MOVIE INDUSTRY Cultural diversity is a complex matter and the awareness of its full significance among citizens still low. According to the UNESCO Universal Declaration on Cultural Diversity of 2 November 2001, it is as important as biological diversity. Whereas biological diversity is essential to the physical existence of humankind, cultural diversity plays a comparable role with respect to the spiritual and emotional life of individuals and communities worldwide. There is today a need to coordinate laws and policies on the national, regional and global level in order to materialize cultural diversity. In the field of cinema, that shall illustrate the issues and solutions at stake for the purposes of this paper, market mechanisms have so far failed to preserve and promote cultural diversity. Cultural diversity can be considered as both a public good and a prerequisite of the freedom of expression and opinion. As consequence, many states and supranational bodies such as the European Union and the Council of Europe intervene today in the audiovisual sector by way of subsidies and other forms of public support. At the same time, the United States, driven by the oligopoly of the Hollywood Majors, seek to remove, or at least to reduce to a minimum, such intervention within the WTO, arguing that public aid distorts competition. In reality, however, one can argue that there is no level playing field in the audiovisual sector between the Majors? motion pictures and the ones from other cultural origins. Overwhelming market domination by Hollywood Majors drives most competitors out of business. To avoid a « pensée unique » in cinema and, on the rebound, in literature and music, states must take action. This paper argues that international agreements containing mere programmatic and declaratory clauses on cultural diversity will not be sufficient. It therefore advocates further exploring the potential of competition and intellectual property laws and policies to contribute to improve the situation. Anti-trust legislation that is specifically designed for the audiovisual sector may also contribute to create a level playing field that grants equal opportunities to content producers from various cultural origins. For the time being, WTO member states remain fully competent to legislate in this area. When competition rules are set on the negotiation agenda of the WTO, states advocating cultural diversity in cinema should mobilize to draft an agreement that is specifically designed to promote cultural concerns by way of predictable and enforceable rules. With respect to content industries, such an agreement should work as a legal safeguard against abuses of dominant market positions that may damage freedom of speech and, eventually, the functioning of democracy. This contribution outlines the situation of the audiovisual market with a focus on film industries and the legal issues at stake with respect to cultural diversity. It further describes the status quo in the WTO, the UNESCO as well as in other relevant organizations concerning the interactions of culture and trade laws and policies after the ministerial conference of Cancún of fall 2003. Eventually, it proposes to further explore an innovative legal framework in order to materialize cultural diversity based on a set of rules prohibiting the newly introduced concept of « cultural discrimination ». This approach is inspired by the prohibition of economic discrimination that underlies WTO law and is articulated in the basic principles of national treatment and most favorite nation. This approach is intended to establish an institutional dialogue based on case-law between the WTO and an international organization in charge of cultural matters, for example the UNESCO. In this context, legislators should address the issue of intellectual property protection. High standards of intellectual property protection are incentives to proceed to excessive marketing expenditures for the Hollywood Majors? films, and, therefore, detrimental to films that do not enjoy comparable investments to accede to the audience. In this sense, too much copyright and trade mark protection contributes to drive films from other cultural origins than the dominant one out of competition. On the other hand, certain standards of protection in the form of authors? rights should remain in place as incentive for creativity and in order to guarantee to filmmakers more independence from subsidies granted by, and from corresponding control of, the state. Legislators who are eager to promote cultural diversity in cinema will therefore have the task of finding a new balance with respect to the standards of intellectual property protection. The TRIPs agreement should provide flexibility to achieve this goal. In the light of these considerations, this paper provides a critical assessment and recommandations with respect to the preliminary draft International Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions of July 2004 that was submitted by a group of experts in cultural diversity set up by the Director-General of the UNESCO.