UNESCO intergovernmental session II, Fourth Day: Thursday, February 3, 2005

Submitted by Sasha Costanza-Chock on February 3, 2005.English

Summary: The day began with the chair's report that yesterday evening's drafting committee came to consensus on the first part of the article of the convention that deals with its objectives. Then the discussion moved for the first time into the meat of the convention: the rights and obligations of the states.

In the morning, the plenary made it through article 5, the general rules on rights and obligations. The best version of this article, the version that is not just about defending state rights but also about promoting policies that lead to more diversity, received the most support.

In the afternoon, the plenary discussed article 6, 'the rights of states parties at the national level.'

It seemed for a moment that the chair would not agree to allow NGOs to speak on article 6; then, after summarizing the discussion so far, he called on me to speak for the CRIS+ position and then on the Coalitions for Cultural Diversity. He arbitrarily ignored the request of INCD to speak, setting a dangerous precedent that the NGOs have begun to lobby to change.

At the end of the plenary there were 15 minutes of discussion on article 7, 'obligation to promote the diversity of cultural expressions,' which contains a dangerous clause on intellectual property and piracy. This will be taken up again tomorrow morning, after a reportback from this evening's drafting committee, which is continuing its attempts to redraft the objectives, in theory according to the will of the plenary discussion.

Blow by blow:

Reportback from the drafting committee

The plenary began with a reportback from the chair on the results of yesterday evening's drafting committee meeting. The drafting committee discussed article 1 a, b, and c, and more or less came to consensus: 1(a) is option 5, with 2 footnotes, so it will read as follows:

"The objectives of this convention are:
(a) to protect and promote the diversity of cultural contents and expressions and foster intercultural respect;"

The term 'protect' will receive a footnote that a final decision on this term will be made 'based on decision taken elsewhere.' This came from the US and is an alternative way of bracketing the term. There is also a footnote that 'cultural contents and expressions' will be replaced based on the outcome of the debate over the title.

1(b) will be the original text, w a footnote about cultural goods and services, and will read:
"(b) to give recognition to cultural goods and services as vehicles of identity and meaning;"

Benin pushed for the inclusion of 'linguistic diversity,' this was not included but is supposed to be included in the preamble.

1(c) resulted in a consensus on option 3:
"to reaffirm the sovereign rights of states to maintain, adopt, and implement policies and measures that they deem appropriate for the protection and promotion of a diversity of cultural expressions on their territory;"

Today's discussion

Today's discussion will be on the section on rights and obligations of states parties, which is the real meat of the convention.

Article 5.1

The discussion of article 5.1, on general rights and obligations, centered on two trends: one (5.1 option 4) to balance national sovereignty with the obligation to implement policies that promote cultural diversity, and the other (5.1 option 1) more narrowly reaffirming national sovereignty. The first of these trends would be a much better outcome for civil society.

At first, there seemed to be strong support for this trend, with both the EU and Brasil supporting it. However, a fair number of states later spoke in support of some form of the national sovereignty version, not only the E Asian countries but also, surprisingly, Canada. Japan suggested deletion of the entire article, with reference to how it might conflict with WIPO provisions, but the chair pointed out that WIPO explicitly allows for national cultural policies. The US intervention on article 5.1: they want to amend 5.1 and revise or delete 5.2. They supports Japan's comments on international law, and Canada's proposal.

China, predictably, supported option 1, strengthened by the addition of 'sovereign' before 'nations.'

Barbados, Haiti, St. Lucia and several others (including Benin, Mali, and later, Colombia) all emphasized that deculturisation is linked to poverty, and that the inability of poor states to support cultural diversity should be included. Although this probably won't happen in article 5, its important that the topic is already being raised. It was suggested that discussion of poverty should be cross cutting, and should be the strongest point of the discussion on international cooperation.

Canada circulated a proposal for revision of this article, and Saudi Arabia made a scary proposal, supported by Egypt, about the right States to control and prohibit cultural works and productions. This proposal was opposed by India and then the USA, after which the chair ruled that it would create internal contradiction in the convention and would not be sent to drafting committee. This created a bit of a stir but the ruling held.

Eventually, the Chair closed the discussion, saying: 80 countries have spoken. After the first 20, it was clear where the various positions lie. He pleaded with the plenary to not repeat itself. He then asked IGOs and NGOs if there were any new comments.

The permanent forum on indigenous issues reaffirmed what was said, and INCD said that the treaty, to be effective, has to balance rights and obligations. It shouldn't just reaffirm the sovereign rights of states. Particularly, option 1 only has rights, not obligations. Also, option 1 does not express any commitment to helping developing countries, while option 4 would more naturally lead to that.

In his summary of the discussion, which carries a lot of weight when the drafting committee meets to revise the text each evening, the chair said there's a general agreement on the affirmative clause, ie a convergence on using option 4 for the first paragraph and option 1 for the second paragraph. This is the version that is not just about defending state rights but also about promoting policies that lead to more diversity, which is good. He also said there is a mandate to clarify legal inexactitudes, clean up the language, and avoid redundancies. Finally, there is consensus that here and in what follows, there must be focus on development and the material basis for the poor to participate in cultural expression. Has to take into account the goals of the Millenium Declaration. The direction to the drafting committee is quite clear, both for para 1 option 4 and for retaining para 2.

After this, there was a long discussion on a Canadian proposal to reword the text, which concluded with the chair suggesting that the drafting committee has a mandate to consider the opinion of some delegates to include it, but the majority are clearly in favor of option 4.

Article 6

After lunch, discussion began on Article 6. on the rights and obligations of states, which to some degree lays out explicit mechanisms that states should be able to use to promote cultural diversity.

Australia promoted deleting 6.2(a) on the grounds that it would conflict with trade agreements. This makes it sound like they were beaten into submission during the recent USAUFTA talks, which Australian film industry is very unhappy with since it freezes their screenquota at the current level and ties their hands for the future.

They also suggested deleting the word 'independent' from 6.2(b), "measures which guarantee independent cultural industries effective access to the means of producing, disseminating, and distributing cultural goods and services." This is really too bad, because with the independent in there it's a potentially nice clause, but without it it's kind of a tautology.

Japan and India want to be very careful in what 'appropriate space' means.
EU (Luxembourg)

USA reaffirms existing rights of nations, but agrees with Mexico that these measures cannot conflict with existing international agreements.

Brasil said the list was not exhaustive but in general support.

Croatia and Canada would like to include a clause that mentions the development of future technologies ('futureproofing' the Convention, as the Canadian delegate said).

Chile also mentioned that they don't want to include anything that could be counter to trade negotiations...hmm, could they be influenced by a bilateral trade deal with a powerful neighbor to the North?

Haiti was the only delegation to explicitly point out the idea of unfair competition, as they put it 'between states with full pockets and those whose pockets are empty.' They were the only ones to say in so many words that sometimes, especially in the case of small or poor nations with weak cultural industries and threatened, diverse, minority populations, protecting local production may be the only way to save it from elimination. They also were the first delegation to call for special attention to women in cultural expression, women as story tellers and creators and transmitters of cultural diversity.

Kenya wanted to change the term 'free exchange' to 'freedom of exchange' since the former might 'have a negative impact on copyright' (!)

There was a large conflict on whether to make special mention of protection of threatened cultures here, with most African countries supporting this idea but most others opposing it, mostly on the grounds that article 8 is meant to deal with this.

After all the countries spoke, the Chair ruled that the plenary wishes to remove the phrase on especially threatened sectors. At this point, I missed the rest of the Chair's summary because I was busy working with the other NGOs to get a comment in, as we realized the Chair had begun his summary without calling on the 3 NGOs that asked to speak at the end of the government discussion. Some of us went to talk to the rapporteur while others went to friendly government delegations to ask them to raise a point of order. No one raised a point of order, but finally the Chair called (seemingly arbitrarily) on two of the three NGOs that had asked to comment on article 6.

I was the first NGO speaker, and I used the opportunity to first respectfully ask the chair to follow precedent from the first 3 days of the meeting and call on NGOs at the end of government comments but before his summary of the conversation, which serves as mandate for the drafting group. Then I read the CRIS+ comments on Article 6, which I had also circulated today on paper to the delegates. (You can find these comments here: http://www.mediatrademonitor.org/cris-unesco.php).

Discussion then began on Article 7.

Article 7, Obligation to promote the diversity of cultural expression.

This article is important because it's the first operative clause that could proactively push states to adopt better cultural and media policies. However, it's dangerous because it has a subparagraph, 7.2(b), on intellectual property rights that would tie states to the current unbalanced copyright system and also push them further to crack down on 'piracy,' without defining the term. Of course, there's no mention of fair use or the public domain.

Going into the discussion of this article, I had been optimistic from conversations with various delegates that the clause could be deleted, for the most part under the argument that IPRs should be discussed in WIPO, not at UNESCO.

At first, several spoke in favor of deleting the IP language. However, Australia spoke in favor of retaining it; Benin made an awful proposal to extend IP granted in each country to all other countries, and the US weighed in in support of the article, with a long speech about how IP is fundamental to cultural diversity and development, current IP law has served artists well and enriched the public domain (!) They did say that new IP law should not be created in this document, but that contradicts their support for the piracy language. The US position is internally contradictory, which most likely stems from internal divisions on the delegation between, for example, the US Patent office and others (maybe the librarians?)

India's proposal was to redraft the IP clause to say that IP would be protected, according to international instruments (note the change from 'existing' international instruments, which is an interesting twist and would allow some leeway, for example, given the pressure to reform WIPO). Happily, they would delete the mention of 'piracy,' but because 'IP disputes should be dealt with in the WTO.' They also gave a speech about how WTO negotiations on IP are to ensure that the "poor starving African artist" is protected by intellectual property law, which is, to put it gently, laying it on a bit thick.

The EU proposal was to delete the IP clause from Article 7, but put a strong statement supporting IP into the preamble.

It's impossible to tell at this point how the piracy clause will shake out. It's hard to lobby on it since there are so few NGOs here and three quarters of them are industry associations that would like strengthened IPR and a crackdown on 'piracy.' I do get the sense that some IP language will stay in the convention, which maybe means we should start lobbying to get mention of public domain, fair use, the rights of the public, the commons etc. in there to balance it.

Tomorrow we'll hear back from tonight's drafting committee meeting, then go on with Article 7 and probably through 8, 9, maybe (but not likely) 10.