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INCD Recommendations on UNESCO Draft Convention on the protection and promotion of the diversity of cultural contents and artist


Since the concept was first proposed, INCD has been in the forefront of the discussions concerning the content of the Convention. We are pleased the proposed UNESCO Convention endorses the basic principles:

· The need to ensure that cultural diversity is preserved in the face of challenges posed by rapid technological change, convergence, erosion of distinctions between content and carriage and increasing global concentration of ownership over the production and distribution of cultural content.

· A fundamental purpose is to preserve the sovereign right of all nations to take such actions as they consider appropriate to preserve, promote and enhance cultural diversity. The Convention must be legally binding with appropriate dispute settlement provisions and enforcement mechanisms.

· Cultural goods and services must not be treated as mere economic commodities.

· Measures to promote cultural diversity must not violate established international principles, including respect for human rights.

· The goal of protecting indigenous and national cultural institutions and works must be balanced with the need to improve international exchange of cultural products and forms of artistic expression.

· The need to ensure that civil society is fully engaged in the process of promoting and preserving cultural diversity.


The INCD believes it is essential for the Convention to have an equivalent status to trade agreements and other international instruments. Cultural diversity cannot be a lesser objective. The rights and obligations in the Convention must prevail where the Parties are discussing cultural policies and cultural diversity.

Article 19

INCD urges governments to REJECT Option B, since this would make the new Convention subordinate to trade treaties and other international agreements.

INCD urges governments to ACCEPT a modified version of Option A, Clause 2:

“The provisions of this Convention shall not derogate from existing rights and obligations of any State Party deriving from any other international agreement, except where the exercise of those rights and obligations would damage or threaten the diversity of cultural expressions, or where State Parties explicitly agree that the provisions of this Convention shall apply in a dispute between them.”

Article 13

In addition, INCD believes a system less onerous than “compensating all foreign services providers” must be found through which a State Party may modify commitments they have made under trade agreements, such as the General Agreement on Trade in Services and other WTO Agreements, to the extent these commitments have negative consequences on cultural diversity in that country. Thus, INCD proposes that in the first sentence of Article 13, the words “bear in mind,” be changed to “give priority to” and that the following sentence be added between the second and third sentences:

“In particular, State Parties shall co-operate to develop a mechanism through which a State Party may, without penalty or requirements for compensation, modify or qualify a commitment or undertaking it has made for purposes of the General Agreement on Trade in Services or other international trade agreements, to the extent that the exercise of such an obligation has a negative consequence for the objectives and principles of this Convention.”

Article 21

The Convention should also do more to ensure coherence between its objectives and future international agreements. Thus, INCD urges adoption of the following amended paragraph 3 (g):

“to establish procedures and other mechanisms for consultation aimed at promoting the principles and objectives of this Convention in other international arenas and to ensure coherence between the rights and obligations of this Convention and any other international convention or treaty entered into or amended after this Convention comes into force.”



The Convention must contain strong measures to support the development of capacity in countries that, while rich in artistic traditions and cultural expressions, do not yet have the capacity to circulate these stories, music and artistic creations in the forms used by developed cultural industries. Developing capacity will assist in achieving the objective of increasing the diversity of cultural contents and providing more choice for consumers in all countries. INCD thus supports the proposals to encourage bilateral partnerships, co-operation agreements and financial and technical assistance. INCD expects that State Parties will implement strong measures anticipated by Article 16(e).

But the Convention provides a unique opportunity to make a real difference in this area, through a mandatory obligation on the developed nations to increase the share of their markets that is occupied by cultural productions from the developing and least developed countries.

Article 17

INCD thus urges adoption of the following amended Article 17:

“1. Developed countries shall facilitate cultural exchanges with and the development of creative capacity and cultural industries within developing countries and least developed countries by granting preferential treatment to their creators, professionals, artists and cultural goods and services.

2. Each developed country shall commit to increasing the share of its domestic market that is occupied by creators, professionals, artists and cultural goods and services from developing countries and least developed countries. The Intergovernmental Committee, on the advice of the Advisory Group, shall establish within two years of the coming into force of this Convention, the appropriate targets and definitions necessary to implement this obligation and the measurements, tests and benchmarks to ensure adherence. Each developed country shall have five years from the establishment of such targets or from its accession to the Convention, whichever is the latter, to implement such targets. ”


In many countries, public service institutions are essential to preserving and promoting cultural diversity and INCD urges the strengthening of the Convention provisions in this respect.

Article 6

INCD urges adoption of the following amended section (e):

“e) measures which establish public service institutions, including public service broadcasters, libraries, archives, galleries, museums and such other institutions that a State Party deems to be an institution that performs a public function; define their remit; provide for their funding in whole or in part; and facilitate and encourage public access to them.”

Annex II.1.4

In addition, the INCD believes the scope of legitimate public policies in Appendix II is too narrow, both in relation to public service institutions and in relation to new media. Thus, INCD proposes the following amendment to the beginning of chapter 1, paragraph 4:

“Promoting pluralism, cultural and linguistic diversity in and for the information society: policies that enhance media pluralism and develop and promote content relevant for the democratic, social and cultural needs of society, including, but not limited to, community, linguistic and minority services and provided, for example, by public service content providers on traditional or new platforms, storage devices and networks, including the Internet …” (Balance as in proposed draft).


Artists and creators are at the very heart of a nation’s culture and INCD believes that recognition of their fundamental role is missing from the Convention. The creator or artist must give tangible form to the “expression” for there to be a cultural good or service that can be circulated: without the artist, there is no “cultural content.”

Article 6(f) (new)

INCD thus urges the adoption of the following addition to Article 6:

“f) measures that recognize the fundamental role and importance of the artist and creator in societies and that promote their economic wellbeing and social status in conformity with UNESCO’s Recommendations concerning the Status of the Artist.”


INCD proposes the following additional amendments on a range of other significant issues:

Article 2.2

“Cultural diversity can be protected and promoted only if fundamental freedoms such as freedom of expression, information and communication, and their corollary, pluralism of the media, as well as the ability of individuals to choose cultural expressions, are guaranteed.”

Article 4.5

“The term ‘cultural industries’ refers to industries creating, producing, publishing, distributing, exhibiting, collecting, storing, preserving, providing, selling or otherwise dealing with cultural goods and services as defined above.”

Article 6.2(a)

“measures which in an appropriate manner reserve sufficient space for domestic cultural goods and services among all those available within the national territory, in order to ensure opportunities across all media, platforms, networks and devices, and independent of the technologies used for their production, distribution, dissemination and consumption, and include, where appropriate, provisions relating to the language used for such goods and services;”

Article 6.2(b)

“measures which guarantee independent cultural industries effective access to the means of producing, disseminating and distributing cultural goods and services; State Parties may implement measures that provide advantages or favour cultural industries that are owned or controlled by its nationals;”

Article 6.2(c)

“measures which grant direct or indirect public financial aid; in granting such aid, State Parties may determine the nature, amount and beneficiaries therefore, and may limit access exclusively to its nationals.”

Article 7.2(c) (New)

“(c) that cultural rights and policies are taken into due account in all of their other policy areas.”

Appendix I (Audiovisual and new media)

“film, video recording and digital storage, music, radio and television programmes independent of the technical means of their production, delivery or dissemination; entertainment software (video games, etc.) and educational content; new media; Internet content relating to the cultural, social and democratic needs of society; virtual reality; broadband video broadcasting (video streaming); radio and television programmes and services, including broadcasting, services for the production, distribution, operation, dissemination and promotion of film, video recording and digital storage; royalties and licence fees.”

Appendix II.1, Paragraphs 6 and 7

“Enhancing and supporting new and traditional media and strengthening cultural industries: support local and national production and distribution on all platforms, networks and devices; ensure plurality of the media through rules on ownership, including rules that prohibit or limit foreign ownership; strengthen existing funding systems and develop innovative new ones; foster complementarity between public and private initiatives; support access to new technologies and new media; training schemes for national specialists, cultural administrators and managers; assisting creators, artists, designers and craftspeople by safeguarding and improving the status of the artist.”

INCD will continue to review and consider the provisions of the proposed Convention on the protection of the diversity of cultural contents and artistic expressions and encourage discussion among its members and other civil society organisations. We fully expect to offer additional comments on the proposed text in the upcoming months as the dialogue is engaged. We invite all interested parties to respond to our proposals and to send us their ideas.

August 2004

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