US State Department public briefing on the UNESCO Convention on Cultural Diversity

Friday, April 15. The briefers were Jane Cowley, Foreign Affairs Officer, U.S. Department of State with Dana Gioia, Chairman, National Endowment for the Arts and Robert Martin, Director, Institute of Museum and Library Services, who were leaders of the negotiating delegation. The briefing took place at The Old Post Office Building, in the President's Council on Arts and Humanities room (Room 520), 1100 Pennsylvania Avenue, NW, Washington, DC.

[Note: apologies for gaps and inaccuracies, the following notes were taken via a conference phone connection with poor quality audio. Comments by the notetaker are in brackets.]

Jane Cowley, Foreign Affairs Officer, U.S. Department of State
[welcomes everyone and provides background]

-In 2001 UNESCO adopted Declaration on Cultural Diversity
-Declaration is a non-binding document
-Secretariat and member states agreed to negotiate a Convention, a binding document
-First draft was created by nongovernmental experts
-US sent Tyler Cowen, professor of economics at George Mason University

[NOTE: How was Tyler chosen? He's an unapologetic advocate of free markets in the cultural sector as the best way to promote diversity.]

-In July 2004 the process was opened up to negotiations by members
-September 2004 was first Intergovernmental (IG) meeting, 132 member states showed up.
-Concerns we've had w/process:
goal to ensure lots of opportunity for member states to negotiate.
September IG was first chance for negotiations. But there was not sustained negotiation.
-We formed a drafting group
-Written comments were due in November
-US is on the drafting group. We met Sept. 14-17. Drafting group didn't have a clear mandate. The result was a revised draft considered by 2nd IG meeting.

[NOTE: detailed notes and day-by-day summaries of the 2nd Intergovernmental meeting are available at http://www.mediatrademonitor.org]

-At the 2nd IG, Working groups were established, which helped.
-by the end of 2nd IG, we had not yet completed a draft. So member states haven't had chance to review it cover to cover.
-current draft available on website. Part 1 will go back to Plenary for review
Part II will go to plenary, then drafting, then plenary for final approval.
3rd part is still preliminary.
-We haven't discussed a preamble yet.
-It's likely we'll use the draft text for negotiation
-The chairman's text is based on his interpretation of the plenary discussions. It's almost finished, and if circulated in time will be discussed at the next negotiation session.

Robert Martin – Director, Institute of Museum and Library Services

-We in the US are delighted to be back in UNESCO
-happy to promote cultural diversity.
-we've learned in this process that there are different themes and agendas present in the room and in the document. Some of the themes we can embrace and others are problematic.
-overarching theme, globalization. How to maintain local cultures when outside cultures can overwhelm them.
-Development... relations between developed and developing countries
-Local enhancement… enhancing access to expressions of local culture minorities, in conflict with
-Social cohesion… states role in cultural cohesion
-Dialogue between foreign policy, economic and cultural needs within governments.
-Ministers of culture often have less clout than the ministers of economy, trade, or foreign affairs. Some of them see the Convention as a means to elevate their status.
-Another idea is to use this process to renegotiate existing agreements, including WTO, GATS.
-Working title of this document is Convention on the Protection and Promotion of the Diversity of Cultural Contents and Artistic Expressions. This is not about Cultural Diversity, although we often refer to it as such.
-We're defining cultural goods and services.

-Our concerns:
-First, commercialization of culture. This may impact museums, libraries, archives, research and scientific communities.
-With respect to access, it would permit governments to put restrictions on access of goods being imported. This would contradict our need for free exchange of ideas and information.

[NOTE: there is VERY little chance that this convention would end up with language that would encourage or allow government censorship of media content. The convention is designed not for censorship, but for mechanisms to promote national cultural industries against multinational takeover.]

-The US believes in strong IP with appropriate limitations. But we contend this is not the proper forum. WIPO, not UNESCO, is the appropriate organization.

[NOTE: this statement is not consistent with US negotiating positions so far, which have encouraged stronger IP language, with no proposals for balancing language (zero references so far to public domain, fair use, rights of the user, creative commons, etc.) If this is really the US stance, we encourage the delegation to follow the very concrete recommendations of the CRIS campaign, signed by many NGOs and academics (including EFF, CPTech, Free Press, Public Citizen, and many more), on specific language to balance the IP language. Failing that balance, all such language should be removed and the discussion can continue at WIPO].

-This binding convention has gone beyond initial intent. Adopting it might limit expression. It would allow countries to place boundaries, doesn't acknowledge that culture is local, not bounded by national borders.
-The US promotes cultural diversity, and the delegation has done its best to bring this to the table.

[NOTE: this process should be used to open a real dialogue inside the US about cultural diversity within our media industries and cultural sector. Before exporting a market-led approach on blind faith that it promotes cultural diversity, let's look at the evidence from deregulation in US media markets. Empirical studies of diversity in media ownership, staffing, and content in the US do NOT support the hypothesis that markets, left to themselves, promote cultural diversity. It's obvious that the US needs to take stronger steps to promote cultural diversity in ownership, staffing, and content across the whole cultural sector internally.]

Dana Gioia – Chairman, National Endowment for the Arts

-US is rightly back in UNESCO. Our attitude should be collaborative, cooperative, and humble. There are 191 countries in UNESCO. We need to understand the diversity, variety, conflict of goals and values. It's a good thing that we're there. We're asking really key questions: What is culture? Where does it reside? And how do you protect/promote/foster it?
-What is culture? An anthropological view sees every aspect of life as culture. But that's all encompassing… we need to bring it down to something more substantive. At the NEA what we're trying to do at UNESCO is focus on the products. When UNESCO defines culture, folkways, ethnicity, and religion are not part of culture. Instead, it's goods and services.
-Where does culture reside? In the 1920s, if you were African American or Mexican American you would not have even been acknowledged. Culture resides within people, not within nation states. This document seems to say that culture resides at the level of the nation states without recognition of minorities or transnational culture. It's defined at the level of nation states. Not a terribly comforting description of culture if you are minority or transnational.

[NOTE: this tension between nation states and internal cultural diversity is a real one during the negotiations over the UNESCO convention. But there is strong support, from many countries in both developed and developing world, for a convention that acknowledges this. The US delegation can play a very positive role in this respect by taking a strong stance and working together with the other governments that support this conception of the convention.]

-Finally, what helps promote culture? Call me naive, but I would say the first thing is Freedom… freedom of language, religion, folkway, and to sell and market your goods and services. Part of that is access to marketplace, where information about what you offer can be made available.

[NOTE: This is indeed naive. Obviously, we all support freedom of expression, and we encourage the Convention to make strong and clear reference to Article 19 of the Universal Declaration of Human Rights. However, the freedom of expression of individuals and cultural groups is NOT the same thing as the freedom of multinational corporations "to sell and market your goods and services." These two 'freedoms' are sometimes in conflict with each other, and governments, be they national, state, or local, should be allowed to use a wide range of policies to promote and protect LOCAL and minority cultures from being erased on the vastly uneven playing field of the market. This is the heart of this Convention].

-I'm troubled that culture is not defined. It's placed as national goods and services as a counter to international trade.

-Not one word in this convention that fosters or supports cultural diversity.

[NOTE: this is quite overblown polemic]

-It's entirely about trade at the national level.
-It's a thinly disguised amendment to the WTO agreements.

[NOTE: This is true. Is that so bad? Do we really have consensus within the US that the WTO agreements are perfect? That trade lawyers at the WTO should be able to rule on cultural policy?]

[NOTE: here Dana mentioned the strong Korean film industry, as an example of how cultural diversity is increasing due to free markets. He failed to describe the history of the Korean industry, and how it became a regional power: by using a screenquota that required a certain amount of films shown in theaters to be Korean-made, and using a ticket tax on foreign films to subsidize Korean film production. These are exactly the kind of policies that are under threat at the WTO, and the the UNESCO convention is designed to protect. See www.screenquota.org.]

-Let's put trade off to one side. What worries me is if you take this document, it gives the nation state freedom to censor information. Cultural policy defined as national policy from the capital.
-This convention really has nothing to do with promoting cultural diversity. Everything is window dressing - it's an amendment to trade agreements.

[NOTE: see our comment above. We agree that cultural diversity resides in the people, not the nation-state, and that cultural policy should not only be national. We disagree that unfettered markets produce diversity of ownership, staffing, content, and access in the cultural sector, and that it's OK for trade agreements to have jurisdiction over the cultural sector.]

Bob Martin
-nowhere does it mention language.
-after the fourth or fifth intervention, the chair said, if you want to cover language, you're going to have to show us how it relates to goods and services.

[NOTE: we would greatly support an effort by the USG to examine the impact of 'free trade' agreements on linguistic diversity. Or to examine the impact of media deregulation internally in the US on linguistic diversity.]

Dana Gioia
-One minister from a large country that is exterminating internal minorites told me, we want to use it to keep American software out. We want to keep Microsoft out. How does that help cultural diversity?

[NOTE: This is a low blow. Now, if we support Free and Open Source Software, we support genocide? There are lots of good reasons why governments - including the US government - should abandon proprietary software and move to Free and Open Source.]

-We would like to see mention of language.
-But this is really a trade document.
-We haven't agreed on a preamble, we haven't even agreed on a title.
-Some of you may be wondering, why wasn't this dealt with at the WTO? Well these issues resurface in different venues.
-Why should we care?

Jane Cowley
-Technically, UN organizations do the bidding of the member states. If member states ask an organization to do something, they bring it to Director General.
-There are potential overlaps. Our policy is to keep that kind of overlap from happening.

Bob Martin
-If you don't like one treaty, if you can get another one that contradicts it, you can reopen the conversation.

Dana Gioia
-I think that some member states want to reopen discussion on WTO issues.

Bob Martin
- Why should we care? Well, if it goes forward as its currently constructed, it will establish some bad precedents. First of all, how it relates to other agreements involving trade and IP. I'm confident the US wouldn't adopt the convention as it’s currently structured. But other countries would, and that would create friction.
-Ultimately, I think it would be seriously detrimental to UNESCO's ability to function as an international organization within its mandate, through the violence that it does to UNESCO's way of working. That would not be a good thing. UNESCO should be strengthened, rather than weakened.

[NOTE: this is a threat to UNESCO. See the similar threat made by US negotiators during the debate over the WIPO development agenda.]

Dana Gioia
-I think its a missed opportunity. You can't do everything in one document. But you can make a realistic and helpful beginning to protecting endangered groups and practices against globalization. It's a legitimate concern, even for Americans to have. It's a kind of globalized commercial culture. It's a missed opportunity to spread understanding of these issues.

[NOTE: we agree entirely]

It will provide UNESCO sanction for the suppression of free speech and freedom of expression. It will weaken UNESCO's credibility to create mutual exclusive agreements.

[NOTE: this is a red herring. It's not about censorship, it's about 'globalized commercial culture,' as you just noted. Hasn't the US learned anything since the 1980s NWICO debates?]

James Early
-Let’s talk about framing a way forward. But let me clear up something first. This process did not start in 2001, it started in 1998. At that time, the issue of globalization was raised as both a benefit and a problem. If you look at the Declaration, it challenged the notion of the inevitable clash of civilizations. This is a symbol of the new ethic. Cultural content and artistic expressions, there's no question that cultural diversity is not in there. Language etc. is important. But tell me about the cultural diversity on your staff. Let's really take it seriously, the issue of language...this is not about censoring people. It's about making sure that the market is not the only measure. I'd like to see people weighing in on this in a positive way.

Dana Gioia
-With all due respect, you’re not paying attention to what we have been doing. We are trying to promote cultural diversity.

James
-Audiovisuals are not just about products, they’re about language...[couldn't hear]

Dana Gioia
-It's not about language, it's about film and music.
-Two of fourteen members of the council are African American. I encourage people to attend our meetings.

[NOTE: wow. "Sit down and shut up, and we're not all white."]

[Jane?]
-The interesting thing I saw is that there are no negotiating sessions. UNESCO meetings are run not as an opportunity to improve, but to ramrod a preexisting text through. The way the drafting sessions are set up has precluded this. I was surprised by how amendments were excluded from this. If you had seen this, you would have come to the same conclusion we did. It's not about negotiating. It's about putting an existing document through. I suspect if we had been members, the final document would have taken a different shape. But the session has been about ratifying a preexisting text.

[NOTE: this is absurd. The UNESCO Secretariat and President of the process are bent over backwards trying to please the US delegation. They repeatedly called on the US to speak out of turn, allowed US positions to go forward even when they were entirely isolated and opposed by nearly all other delegates, allowed the US to reopen discussions that had been closed by consensus of the rest of the Plenary, agreed to send issues to smaller committee negotiations when the US alone desired it, and on and on. See detailed notes at http://www.mediatrademonitor.org]

-I believe that James Early has seen the comments we submitted before the November deadline.

-We do represent the US government. I have never spoken against my conscience.

Frannie Wellings
-I’m from Free Press, the group that asked that you hold this meeting and speak to the public about the Convention, explaining what’s happening in the process from your perspective. But time is ticking and the second half of the meeting was intended for you to explain to NGOs how we can get involved in the process. So, holding this public meeting is a good first step and we all appreciate this and hope that this is the first of many. In addition, I’d ask that you allow us to submit comments to the US delegation and publicize them for all to see.

Dana Gioia
-We've gotten a few comments. Yesterday, I got a long, carefully written document from a prominent actor, talking about the perspective of screen actors, musicians. I haven't been able to study that yet. I would encourage you to provide your feedback.

Frannie Wellings
- But is there a clear process for submitting comments and for us to see what has been submitted to your delegation?

Dana Gioia
-The problem is we have no ability to funnel and reflect those comments into the process. It informs us, but it’s clear to us that the train has left the station. I wish you could have seen some of the plenary voting. It was a kind of kangaroo court. I'm a real proponent for public argument, debate, dialectic. Organizations should discuss this. That debate does not frighten me. The main thing I would ask is that you debate the actual document, versus the opportunity that is being missed. I'm worried public debate will be about the name of the document. It has implications on various things, from trade, to expression.

[NOTE: Avoids the question: how is US position being decided? How can public comment on it?]

Audience Question
-How were people selected to inform the delegation?

Jane Cowley
-Requests for help were sent out far and wide to different agencies and organizations. Those who were interested responded.

[NOTE: Would like to see the request for help and the list of people to whom it was sent, and when. Also interesting that State Dept. tried to shut down the public meeting on the convention organized by Smithsonian.]

Bob
-We rejoined UNESCO in September. I think there are some people more engaged than USG. We're coming late to the game. We want to get feedback. The current schedule won't give us time to debate. We're trying to step back and have the dialogue.

Vicky Assavero [sp?]
-She brings up the New World Information and Communication Order. I'm encouraged to hear about the real desire to promote cultural diversity. It's very important for the US to be engaged. I saw the NYTimes article. This article was dismissive. Culture is a difficult topic, we have to acknowledge that. [can't hear]

[couldn’t hear either – she was speaking away from me]

-It grants the nation states power without protecting. The larger question you raised is important. One of the down sides of the agreement is that it will provide an opportunity for bashing UNESCO. We believe that we should be engaged in a positive way, but it is a real danger. While this agreement has its problems, it doesn't represent the full potential.

['Joe' - army? can't hear] I believe in the free association of ideas. I believe in letting all kinds of arts into all places in the world. Culture can jump all kinds of barriers. Government doesn't always help [?]

Frannie Wellings
-Even if you have trouble funneling comments into a process, there are many interested communities that have a lot to say as we can see by the response here. We’re interested in informing you of our positions, funneling them into the Delegation. Wouldn’t it be useful if instead of talking abstractly about cultural diversity, we could say for example, in section 6 we would change the language to x, y or z?

Dana Gioia
-You can give us your feedback. Our ability to reflect them in the document is almost null. That's the problem.

[NOTE: the point is, we want input to the US government position. Obviously if the USG negotiates in good faith based on a position that has had broad public input, we understand that not everything will make it into the UNESCO document after negotiation with all other governments.]

Jane Cowley
-I understand there are people who feel we're doing this behind closed doors. That's not the case. All our documents are online. The language we have submitted. The State Dept website is quite protected. I don't know how to make it interactive. We encourage you to submit comments.

Frannie Wellings
-We aren’t asking for an interactive web site. This is not complex. We’re asking, for example, that you post information in the Federal Register. That you accept comments and post them online. Other governmental agencies do this despite firewalls. This is what is involved in open negotiations. Can you see if you can do this?

Alexander Zemek (State Dept) –
We’ll see what we can do.

The American press has been unengaged.

Sasha Costanza-Chock

*Disjoint between statements and negotiation positions on IP.
The USG keeps saying that we recognize the need to balance IP with fair use and public domain. But our negotiation positions are not consistent with that; instead, US delegates are pushing for stronger IP at UNESCO, at WIPO, everywhere.

*Convention as 'hidden amendment to WTO.' Is that such a bad thing?
There's no FCC at global level against consolidation. US citizens clearly care about this at the domestic level, based on the public outcry against FCC deregulation that would have encouraged greater cross ownership and consolidation. Wouldn't the American people care at the global level as well if they knew? Is it really a closed debate in the USA whether it's a bad thing to amend WTO?

Meeting ends.