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FAIT Committee Report

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CHAPTER 8:
CULTURE AND CULTURAL DIVERSITY IN THE AMERICAS

We believe it's very important to develop a cultural covenant that would define culture not simply as a commodity but as a matter of national importance and to be able to remove it from whatever international trade agreements are developed. That would include, of course, the FTAA. [Megan Williams, 32:1535]

Culture, Diversity and Policies

In Chapter 2 the Committee referred to and provided statistics on the diversity of societies of the Western Hemisphere and, except for wealth diversity, the Committee wishes these diversities to remain much the same. As we understand it, what is being proposed in the Free Trade Area of the Americas (FTAA) is greater economic integration, not political integration or cultural assimilation. Consequently, as the Americas become more economically integrated, it is important that the hemisphere's countries retain strong domestic cultures to ensure their sovereignty and sense of identity. Indeed, the Committee holds that culture is the heart of a nation and that this is as true for other countries as it is for Canada.

UNESCO defines culture to include cultural heritage, printed matter and literature, music and the performing arts, cinema and photography, radio and television, and socio-cultural activities. Using this definition, the revenues of Canadian cultural industries are conservatively estimated at $20 billion (1994-95), representing about 3% of the country's gross domestic product, and employing 610,000 persons on a full- and part-time basis.

The Government of Canada, as steward of our national identity, has invested public funds and other resources in the cultural sector as a method of nation-building and of promoting a multicultural society. The government has thus accepted the argument advanced by the cultural community that Canada's small market cannot by itself support world competitive firms of distinctively Canadian products. These companies simply cannot spread the large up-front financial outlay wide enough in the domestic market to be competitive on a world scale and, at the same time, be profitable given the market and financial risks they bear. Only when these Canadian products attract large foreign audiences can they be put on a world competitive basis, but this wider acceptance often requires that these products compromise or tone down their Canadian cultural content. By definition, such a competitive market means the prospects are not good for the more successful export-oriented Canadian products to cross-subsidize distinctly Canadian cultural products. Distinctly Canadian cultural products marketed exclusively for the domestic market can only exist with large government financial and regulatory assistance, which are increasingly coming under attack from foreign interests in the wake of Canada's international trade commitments.

The Committee heard witnesses spanning the entire cultural community expressing the positive strategic value of this assistance in preserving Canadian culture and of impending demise should it be withdrawn.

Canadian authors compete very well in the world marketplace. This reflects the merit of their work, but it also reflects the cultural encouragement they've received in the formative stages of their development. The increasing pressure to roll back existing Canadian government initiatives to protect and encourage its cultural diversity, however, threatens this formative sovereign environment in which creators learn and develop their craft. ... [Barry Grills, 32:1600]

In the formative years of Canadian cultural policies, the government almost exclusively provided subsidies, both direct and indirect, and tariff protection to achieve its cultural objectives. With time and technological developments in production and distribution, tariffs gradually disappeared, while the number and dollar amounts of subsidies increased substantially until the most recent federal budget cutbacks. Government subsidies have also of late been complemented by attractive tax and investment measures, along with regulatory measures in television, film, music and book publishing sectors.

Trade Policy Arenas and Canadian Commitments

International trade agreements vary in their treatment of cultural products and in the disciplines they impose on their signatory countries. At the multilateral level, the World Trade Organization (WTO) administers the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). Countries that are signatories to the GATT have further negotiated the Agreement on Subsidies and Countervailing Measures (ASCMs) and the Agreement on Trade-Related Investment Measures (TRIMs) that impose a few more disciplines on them. Canada is signatory to all of these agreements, as well as to regional and bilateral agreements, most notably the North American Free Trade Agreement (NAFTA) and the Canada-United States Free Trade Agreement (CUSFTA).

The GATT 1994 subjects all goods to non-discrimination disciplines (i.e. most-favoured nation (MFN) and national treatment), although it recognizes two exceptions for cultural goods. Article IV of the GATT permits countries to establish quotas for the exhibition of domestic films, and Article XX(f) permits measures related to the protection of national treasures of "artistic, historic and archeological value." The ASCMs establishes three categories of subsidies for goods: those that are prohibited, those that are actionable and those that are non-actionable. Prohibited subsidies would be those conditioned on export performance or on the use of domestic rather than imported inputs. Subsidies must also be paid directly to the producers, as in the case of postal subsidies to periodical producers. This means that tax credit schemes that are widely used to support audiovisual production may be considered in contravention of national treatment provisions. TRIMs prohibits the establishment of certain performance requirements as a condition for foreign investment.

The GATS subjects services, including cultural services, to its provisions. However, in this case, countries are allowed to opt out of certain national treatment and MFN obligations. Canada has taken an exemption from MFN under Article II for coproduction treaties for film and television production that it has with a number of countries. Canada, on the other hand, did not take an MFN exemption for its film distribution policy, one that grants more favourable treatment for certain U.S. distribution companies. Under Part III, Canada made no market access or national treatment commitments for any cultural services and none in the wholesale trade services sector for musical scores, audio and video recordings.

Clearly, these multilateral agreements are becoming increasingly pervasive in their coverage of traded products, expanding beyond tariff barriers to govern most forms of non-tariff barriers. This coverage has become so encompassing that some measure of overlap between agreements has created confusion over the obligations of signatories. In terms of cultural products, for example, the WTO decision on periodicals (split-run magazines) has brought to the fore the question of whether culture is a good or a service and which trade agreement applies when the product in question combines a good and a service. It has come to light that some cultural products are also considered intellectual property subject to the Agreement on Trade-Related Intellectual Property (TRIPs). The resolution of this confusion and other related matters is clearly important to Canada's cultural community, but it is also necessary for the optimal design of a country's domestic policies.

In regional and bilateral agreements, Canada has negotiated a cultural exemption. The treatment of cultural goods in the NAFTA (Annex 2106) is conditioned by Article 2005 of the CUSFTA which provides for exemption, except when there is a specific provision. The parties are thus free to intervene in support of their cultural industries at the possible cost of retaliation of "equivalent commercial effect." This exemption applies to cultural industries between Canada and the United States, and Canada and Mexico, but not between the United States and Mexico. In terms of cultural services, there are no obligations and no recourse to retaliation since there is no mention of them in the services chapter of the CUSFTA.

The Committee has two observations to make on the treatment of culture in the NAFTA and the CUSFTA that would directly relate to matters of the FTAA. The first would be that Canada was obviously unable to secure Mexican support in the NAFTA for culture as something more than a tradable commodity, perhaps because Mexico wishes to exploit the large Latino market in the United States and that the language barrier presents a formidable obstacle that allays any Mexican fears of being dominated by Hollywood or other U.S. industry interests. The second observation would be that the exemption instrument, which according to many cultural groups is an unsatisfactory compromise, is a direct result of the lack of a meeting of minds between Canada and the United States. Our agreement to disagree on culture may have produced the exemption clause, but this instrument has limitations, since any solution pursuant to it is not governed by established rules, but by the relative power of the disputants - something we, as a mid-sized open economy, are trying to avoid.

Exempting culture from trade agreements does not exempt cultural issues from international discipline. Without an effective institutional framework within which international trade and investment in the cultural industries takes place, Canada will experience a rising number of bilateral cultural disputes with larger and wealthier countries or blocs. In the past, the United States has taken a tough stance in cultural disputes with Canada because it was concerned with domino effects on the policies of other countries. [Keith Acheson, 96:1025]

A case in point would be the split-run magazine dispute. In the end, a negotiated solution to this dispute was found, but it involved emasculating the more discriminatory aspects of Bill C-55.1 It also led Canada to shift its protectionist strategies away from restrictions on foreign products and towards the direct subsidization of Canadian products. The exemption option did not, therefore, exorcise protectionist cultural policies from Canadian international trade agreements and commitments.

New Technologies and Organizational Structures

In the advent of the microchip and the digital revolution, along with increasingly liberalized national markets, two predominant socio-economic transformations are taking place. These changes are globalization and convergence. Their impact has been felt in virtually all sectors of the economy, but predominantly in the cultural sector, which includes telecommunications and broadcasting industries.

Appendix 1 describes the nature and the foreseen consequences of globalization in some detail, but it suffices to say that for the cultural sector it means firms must reposition themselves to prosper in the so-called "Information Age." Cultural firms of all stripes are, directly through mergers and acquisitions and indirectly through the formation of alliances and consortia, expanding beyond their national borders to bring products to world markets. Foreign market penetration for an industry characterized by a huge up-front fixed cost structure, which means the first unit produced is very expensive while all subsequent units are a pittance by comparison, fits well into its current market-maximization, product-distribution strategies of firms. Cultural firms cobbled together in this fashion, which has also spawned multinational cultural firms, are, therefore, simultaneously breaking down national borders and "raising the bar" for commercial success.

The transmission of data, information, audio and video by digital code and compression techniques over new, higher capacity media (fibre-optic cables and the radio spectrum) is fostering the convergence of once quite distinct sectors: telephony, cable television, broadcasting (radio and television), and microprocessing industries. It has also turned the sector somewhat upside down as the longstanding perceived problem of spectrum scarcity has become a problem of content scarcity. The dominant corporate repositioning strategy to date seems to be both horizontal and vertical mergers and acquisitions. These strategies appear to be reengineering quite distinct products (books, magazines, music, film, television and radio programming, etc.) into multimedia products, while, at the same time, they attempt to transform quite distinct distribution systems (coaxial cable, telephone wire, satellites, Internet, etc.) and networks into an integrated "Information Highway."

On the cultural side, apart from lowering the cost of producing traditional products, quite a number of new cultural products are being developed in the process. Artists of all sorts are now able to express their talents through CD-ROMs, video games, virtual reality, digital animation, and interactive programming, education and training. Moreover, an online magazine or book, which is less expensive to produce than hard copy versions, will be able to integrate sound and film, thereby redefining the reading experience. A film may also have many different plots and endings that will allow interactive choice and participation by the audience, obviously redefining the film viewing experience. On the negative side, these new technologies and products increase the opportunity for theft or unauthorized use, forcing policy-makers to refocus their efforts on upgrading our domestic intellectual property laws and the TRIPs agreement. These new product forms also increasingly put into question their status as a good or service and the applicability of alternative trade agreements.

Adaptation, Strategic Responses and Policy Instruments of the Future

This new globalized environment not only imposes unique challenges on the sector, it also demands greater attention from Canadian cultural policy-makers. As one witness put it to the Committee:

The problem is we've built up this huge and very successful Canadian broadcasting industry - production industry, music industry, movie industry - ... based on [the existing] structure ... The Internet is coming, and we're not going to be able to control what's on the Internet. So for a period of time we need to make sure we allow the Canadian industry to transform itself, so it goes from being the broadcasting industry it is today to a new media industry that will compete on a global basis, because we're not going to be able to control ... what is brought into Canadian homes. [Willie Grieve, 124:925]

What this witness is suggesting is that Canadian regulatory policies designed to have foreign products cross-subsidize Canadian products, as orchestrated by the Canadian Radio-television and Telecommunications Commission (by way of Canadian content rules, product bundling strategies, "must carry" requirements and other licensing conditions), as well as other public policy instruments will become less effective with greater program choice and expanded bandwidth signal delivery systems. This inability to effectively regulate the content and transmissions of cultural products over the Internet has consequences and, in the event of producers migrating to the less burdensome systems, a rejigging of public policies is advised. The Canadian content imperative shifts, therefore, from ensuring access by regulation to ensuring access by fostering firms with solid reputations for quality productions. According to one expert in the field, we, as a nation, may be losing ground precisely because we appear improperly focused.

The issue ... is the lack of attention being paid in Canada to the need to develop a strong content industry on our own terms. While we worry about international agreements, it may well be that all our efforts are irrelevant if we can't take advantage of the new opportunities the new economy has to offer. It should be of concern that while we in Canada worry more about content, the U.S. is actually doing more to ensure that they have a strong content industry. [Ken Stein, 32:1550]

Certainly, cultural policies based on quite distinct sectors will have to be redesigned in the face of the blurring of their traditional boundaries. Indeed, more attention will have to be paid to providing a "level playing field" between once distinct industries, as policy leakages may arise when some foreign producers choose to circumvent the more restrictive product markets and distribution methods for the least restrictive ones. Canada could only be the loser if genuine business entrepreneurship is diverted in this way to socially wasteful bureaucratic entrepreneurship.

From a proactive policy perspective, selective cultural instruments ripe for the increasingly internationalized market environment have been suggested:

Excise taxes or user fees can be used on a non-discriminatory basis to provide user-pay funding to cultural creators. This approach is already embodied in the Canadian Television Fund and could likely applied to other cultural sectors as well. GATT Article IV provides for domestic film screen quotas in movie theatres. This article has never been practically applied, but the concept has been carried over into radio and television domestic content requirements, so far without any clear rules and without unanimous approval within the trade organizations. Nonetheless, the concept of reserving some cultural shelf space for domestic content does exist, and it needs to be refined and embedded in a new instrument. [Dennis Browne, 96:1000]

Finally, Canada's cultural policy-makers can no longer rely so heavily on traditional protectionist measures, as many Canadian firms are likely poised to enter foreign markets. The openness of domestic markets now becomes an important consideration to factor into the policy calculus, if foreign markets are to remain open to Canadian cultural products. Indeed, Canada is at a crossroads in the cultural-trade policies nexus. The cultural SAGIT suggests that Canada should champion a new cultural trade instrument.

Canada [should] take the lead in developing a new international instrument that would lay out the ground rules for cultural policy ... I've set out the five essential elements of this new instrument. They would be the following: recognize the importance of cultural diversity; acknowledge that cultural goods and services are significantly different from other products; acknowledge that domestic measures and policies intended to ensure access to a variety of indigenous cultural products are significantly different from other policies and measures; set out rules on the kinds of domestic regulatory and other measures the countries can and cannot use to enhance cultural and linguistic diversity; and establish how trade disciplines would apply or not apply to cultural measures that meet the agreed-upon rules. [Ken Stein, 32:1545]

What remains unclear to the Commitee in the conception of this new instrument would be its legal status and institutional residence. Would this instrument be a separate treaty outside the purview of the WTO or a sectoral agreement like that for telecommunications and financial services within the WTO? The Committee was given the preference of one witness (Ken Stein, 32:1645) who favoured the former under the friendly confines of UNESCO. However, the effectiveness of this option to segregate cultural products from international trade commitments is questionable. A new treaty also means that we are creating a new forum from which disputants might shop. As Canadians witnessed in our recent split-run magazine dispute with the United States, this option might only lead to more confusion and to costly management of the issues at stake. In the alternative route, as a sectoral agreement, the WTO may be able to better manage these conflicts. In any event, much work is still needed to flesh out the effectiveness of alternative mechanisms.

While this new cultural instrument, with the above and other details worked out, would likely be the ideal instrument in this new global trading environment, it is by no means a certainty, given that countries like the United States would have to be signatories for it to be effective - at least from a Canadian perspective. One culture international trade expert put it succinctly to the Committee:

In an international trade negotiation, Canada can forge alliances with other like-minded countries that will improve the chances of developing a framework of values and rules that trumps the jungle of bilateral interactions. ... [T]he mystery is not why countries like Canada should support a WTO agreement, but why the lords of the jungle - the United States, Japan or the EU - should. [Keith Acheson, 96:1025]

The Committee feels that a similar covenant should also be sought as part of a regional undertaking such as the FTAA. However, notwithstanding U.S. opposition, there are additional complexities to forging such a covenant in the Americas region.

[W]e're working to organize a parallel conference in Mexico - parallel to the ministers - for international cultural organizations. We're having a very difficult time because the NGOs in Mexico are almost non-existent in the cultural area. Any connection we have is tied in very closely with government, and the Mexican government is not welcoming a conference of NGOs. ... I think we'll experience the same problem as we widen the circle and start working with other cultural organizations in Latin and South America. The type of development we see here in Canada, with a very complex cultural infrastructure, just doesn't exist in those countries. [Megan Williams, 32:1535]

The Committee further acknowledges that none of the other economic integration treaties - MERCOSUR, Andean Community, CARICOM, CACM - treat the cultural sector different from other sectors, except in terms of foreign investment and ownership requirements. Regulations on content are nowhere to be found. Moreover, despite significant exports of Brazilian and Argentinian audiovisual products to the smaller markets of Paraguay and Uruguay, with combined market shares of the former as overwhelming as that of the United States within Canada's market, there is not even a hint of cultural protectionism emanating from either of the latter two South American countries. While the Committee finds this lack of concern for retaining and defending one's cultural sector disturbing to Canada's interests, as well as posing a threat to hemispheric cultural diversity, one witness offered a conciliatory strategic purpose for the cultural covenant approach in the FTAA:

[T]he FTAA will be a Mexican standoff, if I can use another metaphor. So nothing will happen, but a lot can be learned. ... [R]elationships can be forged with Caribbean nations, with Latin American nations ... preparing us for the possibility of getting the Americans to the table at such a new instrument, which is a rather bold leadership role for Canada. [Sandy Crawley, 96:1135]

The Committee duly notes these views and recommends:

14. That the Government of Canada preserve Canada's cultural identity through the continuation of its present cultural exemption policies while working to establish a new international instrument on culture along the lines contained in the Cultural SAGIT Report, if feasible within the World Trade Organization framework, and to seek alliances amongst the nations of the Americas for achieving this instrument.


1 Bill C-55 was one of Canada's legislative responses to a negative WTO ruling on Canada's periodicals or split-run magazines policies. Originally, the bill would have modified these policies in a way to achieve the same objectives while trying to exploit different obligations between the GATT and the GATS.