Cultural Products and the World Trade Organization

Cultural Products and the World Trade Organization

Cambridge University Press
9780521873277 - Cultural Products and the World Trade Organization - by Tania Voon
Frontmatter/Prelims

Cultural Products and the World Trade Organization

Debate about trade and culture has a long history, but the application of WTO rules to cultural products such as films, radio, and books remains one of the most divisive issues in the organisation. After assessing the economic and social arguments for treating cultural products differently from things like steel or wheat, this book explains how the vastly different views of WTO Members in earlier negotiations led to an outcome that is disappointing for all. It goes on to provide a comprehensive evaluation of possible solutions, including evolution of the law through WTO dispute settlement, a new agreement outside the WTO, and reforms to improve the balance between trade liberalisation and cultural policy objectives. As UNESCO’s new convention affecting trade and cultural diversity is due to enter into force in 2007 and the WTO’s Doha Round of negotiations is stumbling, the need for such an evaluation is all the more pressing.

TANIA VOON is Senior Lecturer in Law at the University of Melbourne. From 2003 to 2005, she was Legal Officer in the Appellate Body Secretariat of the WTO. Tania studied law at the University of Cambridge (Ph.D.), Harvard Law School (LL.M.), and the University of Melbourne (LL.B. (Hons), Grad. Dip. Intl. L.). She has taught WTO law in Canada and Australia and published extensively in leading journals.

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Cultural Products and the World Trade Organization

Tania Voon

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CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press
The Edinburgh Building, Cambridge CB2 8RU, UK

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org
Information on this title: www.cambridge.org/9780521873277

© Tania Voon 2007

This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without
the written permission of Cambridge University Press.

First published 2007

Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

ISBN 978-0-521-87327-7

Cambridge University Press has no responsibility for the persistence or
accuracy of URLs for external or third-party internet websites referred to
in this publication, and does not guarantee that any content on such
websites is, or will remain, accurate or appropriate.

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For Chester

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Contents

Detailed chapter outline		page ix
Table of GATT/WTO agreements		xiii
Table of GATT/WTO cases		xiv
Table of abbreviations		xvii
	GATT/WTO agreements	xvii
	GATT/WTO cases	xviii
	Other abbreviations	xxvi
Foreword		xxxi
Acknowledgements		xxxiv
Part I  Stalemate and its ideological origins		1
1	Trade and culture	3
2	A case study of cultural products: protectionism vs cultural policy	37
3	What’s wrong with the current treatment of cultural products?	69
Part II  Options for the future		121
4	Resolution through dispute settlement and international law	123
5	Constructing a new agreement outside the WTO	173
6	Improving the existing WTO agreements	217
7	Conclusion	248
Bibliography		257
	Non-WTO agreements, cases, statutes, and treaties	257
	Other official documents and reports	259
	Articles, books, chapters, and papers	271
Index		295

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Detailed chapter outline

1	Trade and culture				page 3
	1.1	‘Trade and …’ problems			3
	1.2	Cultural implications of WTO rules			11
	1.3	Cultural industries, cultural products, and cultural policy measures			18
		1.3.1	Definitions		18
		1.3.2	Common cultural policy measures		19
		1.3.3	Significance in the WTO		23
		1.3.4	Significance in other international contexts		29
	1.4	Towards a solution			33
2	A case study of cultural products: protectionism vs cultural policy				37
	2.1	Introduction			37
	2.2	Legitimacy of State support for cultural products			39
		2.2.1	The nature of cultural products		39
		2.2.2	Promoting or preserving culture through cultural products		41
	2.3	Justification for discriminatory cultural policy measures			43
		2.3.1	The market for cultural products		43
			A.	US dominance	44
			B.	Positive externalities of cultural products	50
		2.3.2	The need for discrimination		54
			A.	Against foreign cultural products	54
			B.	Between foreign cultural products	59
	2.4	Evaluating cultural policy measures in the WTO			60
		2.4.1	Motives for cultural policy measures		60
		2.4.2	Effectiveness of cultural policy measures		61
		2.4.3	Minimising trade restrictions		64
	2.5	Conclusion			67
3	What’s wrong with the current treatment of cultural products?				69
	3.1	Introduction			69
	3.2	Cultural products as goods and services			70
		3.2.1	Basic definitions and classifications		70
		3.2.2	Digital products		73
	3.3	Presumed ‘likeness’ of cultural products			75
		3.3.1	Likeness under GATT 1994		76
			A.	Like products	76
			B.	Directly competitive or substitutable products	80
			C.	Aims-and-effects test	82
		3.3.2	Like services and service suppliers under GATS		85
	3.4	Unbalanced and uncertain exceptions			89
		3.4.1	Government-supplied services		90
		3.4.2	Screen quotas		92
		3.4.3	Subsidies		96
			A.	GATT Articles III:8(b) and XVI and the SCM Agreement	96
			B.	GATS Article XV	98
		3.4.4	General exceptions (GATT Article XX, GATS Article XIV)		100
			A.	Structure and chapeau	100
			B.	National treasures	104
			C.	Public morals and public order	105
	3.5	The GATS outcome			109
		3.5.1	Limited national treatment and market access commitments		109
		3.5.2	Excessive MFN exemptions		113
	3.6	Conclusion			117
4	Resolution through dispute settlement and international law				123
	4.1	Introduction			123
	4.2	The role of international law in interpreting WTO law			124
		4.2.1	Relevant provisions		125
			A.	Article 3.2 of the DSU	125
			B.	Article 31 of the VCLT	126

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