UNESCO intergovernmental session II, Day 10: Wednesday, February 9, 2005

Submitted by Sasha Costanza-Chock on February 9, 2005.English

Summary: Today the drafting committee met all morning to continue working. In the afternoon, plenary met to discuss the new draft of articles 12 through 18 (except 13), on rights and obligations of the signatories of the convention, as well as the president's suggestions for the definition of 'protect.' In general, it was encouraging to see some progress coming from the drafting committee, with suggestions for articles 12 through 18 that took into account many comments from the plenary. Unfortunately, the imperative to developed states (especially in article 13) to make room in their markets for developing country cultural expressions has been watered down with language like 'encourage, where possible, with a view to.' On the good side, many provisions describing cultural policies that should be part of the 'toolkit' remain in, when they might have been deleted. Also positive, the proposed definition of 'cultural goods and services' that came from the president has removed the unbalanced clause on intellectual property. That's not a done deal, however, and will come up for debate in the drafting committee tonight and in plenary tomorrow.

There was then a long debate about the chair's recommended definition of the term 'protect.' The overwhelming majority want to keep the term in the convention, and repeatedly say that it is being used not in the sense of trade protectionism but in the sense of nurture, safeguard, preserve, enhance. The US is pretty much alone in continuing to insist that 'protect' be bracketed and pushing for its deletion or replacement with another term, although Japan is reserving judgment for later.

Tonight the drafting committee continues meeting, as will an ad hoc working group on the definition of 'cultural goods and services' (see below for how the chair tried to stack this group against the Brasilian position but was rebuffed).

Blow by blow:
Last night the drafting committee made a good decision on the clause dealing with the scope of the convention. They will adopt a text that gives the convention a broader scope, ie it will be applicable to policy that impacts cultural diversity, not only cultural policies. This is a small victory.

Although plenary was supposed to convene at 11, this morning the drafting committee continued working until lunch.

In drafting committee, the recommendations of the plenary do not seem to be taken with a great deal of force, as states continue to fight for their language and the discussions of plenary repeat themselves.

In drafting group, Brazil expressed concern that article 6 was being watered down against the will of the plenary.

India suggested that they want the language to defer to other agreements, especially they are concerned about not conflicting with WTO. India, like USA, wants to delete language in 6 that protects 'regulatory and financial measures.'

Lunch break

NGO meeting: Director General's office is saying that something will go to the general assembly, but it's not clear exactly what that would be. Postponing to 2007 might be useless, because by then the WTO will be in a new round, FTAA will have been approved, and 30 bilateral agreements will have been negotiated. On the question, why is there a rush to adopt the convention as soon as possible? There are two main theories. One is that some states want the convention adopted before the WTO ministerial in Hong Kong. Another theory is that France wants it ready as soon as possible to use as a political tool in European Union negotiations over cultural industries.

After lunch, plenary convened for the first time today.

Discussion was on articles 12 through 18, except for 13. The version of these now under discussion came from the drafting committee's incorporation of the plenary's comments.

On article 12, promotion of international cooperation.

Chair paused to chastise everyone in the room for starting half an hour late, then coming into the room and moving all over the place and talking out loud.

Japan: title of 12 might need revision.

Brazil: concessions were made on all sides in order to reduce the options and restrictions. Gives a vote of confidence to the working group.

Chair said thanks, and no more praise.

USA: Subscribe to Johannesburg sentiment on cultural diversity as element of sustainable development. Would like to be the third to praise chairman. USA supports collaboration between states in order to promote cultural diversity. Recommend merging several provisions. Regarding specific comments on the new article 12: cross cutting issues including cultural industries, protection, etc. have been flagged, and will need further discussion. They agree w/Japan that the title might need refining. (f) should be deleted because it might conflict with current discussions at WTO.

Canada: we like the restructured text of Article 12. We welcome the cooperation between states on this. On the title of the section, we would agree with Japan to remove 'rights and.' Canada is happy with the reference to civil society. Don't have any problem with current version of Article 12.

Chair suggests that we move on, noting that the title may need discussion and (f) is flagged.

Jamaica spoke for the first time, apologized for coming late to the negotiations, it was Bob Marley's birthday on Sunday. Coproduction and codistribution are not the only means to promote cultural diversity. Also wants the question of vulnerability to be discussed. Poverty, lack of education makes people vulnerable. Modernization affects traditional cultural concepts. If we understood vulnerability, it would help us outline other measures that would help us with cultural vulnerability and sustainability. We should come back and add to article 12 once we have discussed vulnerability.

Luxembourg: Best way to show gratitude to working group is to support the text that came out of that group. Article 12 as it came back from that group fulfills the expectations of the EU. We like Article 13 also.

Saudi Arabia: the title of Article 13 "promotion of the central role of culture in sustainable development" is inconsistent with the general use of 'protect and promote.'

Chair responds that we will debate 'protect' tomorrow. Declares that we are now moving on past article 12, which is accepted by general consensus. On to article 13.

South Africa: 13.2 (about development of innovative partnerships) comes from the former article 18, incorporating option 3. 13.3 is about specific needs of developing countries. South africa explained the new draft of article 13, rationale behind the new language.

Overall the new 12 and 13 look as good as could be expected, with mentions of the local that we hoped to see, as well as references to the role of civil society and NGOs (of course, mentioned alongside the private sector). It was also encouraging because it brought some momentum back to the process to see consensus on several articles coming back from the drafting group. However, the provisions on developing country access to developed markets have been quite watered down.

Chair suggested that the title of the Fund for Cultural Diversity would have to change, since it's not a fund for Cultural Diversity but for the diversity of expressions. Article 13.3 provides a long list of areas of encouragement in specific cultural policies. Thinks that US is right that co-productions and co-distribution should be located here rather than in article 12, since it is one of that list.

Jamaica: why is the term 'innovative' repeatedly used? What is the meaning and purpose of that term? For example, why 'innovative partnerships' rather than 'partnerships?' Similarly, why 'appropriate, innovative collaborations' rather than collaborations? Also, in this section we are just promoting international cooperation, rather than the role of such in sustainable development. Also, concerned that language on movement of culture from developing to developed countries is not strong enough. This language was included in the previous draft, but the element of moving culture and artists from developing to developed is pretty much gone.

Chair tried to interrupt.

Jamaica wouldn't let him and kept making the point that the original text gave developing countries market access to developed markets. Also allowed them to access aid to use for this purpose but that is no longer here.

Chair tried to shoot down Jamaican comment by saying that the comment on access to developed markets had indeed been included in 13.3.iv.

This is true, but the language is indeed very weak ("the adoption, where possible, of appropriate measures in developed countries with a view to facilitating access to their territory for the cultural goods and services of developing countries").

Saudi Arabia: 13.3.i should start with 'helping,' because cultural industries do already exist in developing world.

USA: Some of the articles could be refined, they still are a bit narrow. 13.3.a, 'cultural industries' is too narrow. 13.a.iv and v are too narrow. Could also elaborate on cultural exchange by mentioning librarians, curators, etc.

Haiti: 13.1, proposal for different language emphasizing interlinkage of cultural development and sustainable development. Add "indissociable from cultural development, and within this framework..."

Yemen: This convention is inspired by convention on intangible heritage. So in (d), on financial support, we shouldn't just have a carbon copy of other conventions. Every convention requires a fund. Drafting suggestion: "voluntary contributions, the modalities of which would be determined by the general conference." (rather than by the general assembly of states parties to the convention).

Chair: we could add the US suggestions on cultural workers etc. On 4.1, the general assembly of states, as well as the general conference, must be in square brackets. We now pass on to the next provision, article 14 ("Preferential treatment for developing countries").

South Africa: after 3 and a half hours, we agreed that original text found in article 17, should be kept here. But we still want to have a discussion that will allow us to reach some kind of consensus.

INCD comments (will post these when we receive them in electronic form) that obligations shouldn't be weakened.

International Federation of Library Associations: made a strong statement on the need to ensure access to cultural expressions. Libraries, archives, and museums are concerned about unbalanced IP in the draft. Balanced IP law is necessary. Existing treaties, including WIPO, are better set to deal with this.

Discussion on these articles was then closed. Chair opened a discusison on the word 'protect.' Wants to hear from those who have been objecting to 'protect' exactly what the basis of the objection is.

Brasil: In French, the word 'protect' doesn't have only the meaning of shield. When we talk about the protection of children, I don't think the meaning can be reduced only to physical protection. We talk about protecting childhood and children. In an atmosphere of suspicion, which I find rather disappointing, I think that the concept of protection and protecting culture should not be reduced to mercantile protectionism. The notion of protection should not be reduced to a mercantile notion.

India: Between the three options you have set out, there is only one option, which is the first option. We have always looked at the term protect in the same context we use it in human rights instruments - nurture, safeguard, preserve, enhance. It should be clear that it's not a protectionist, mercantilist end.

USA: Thanks for the working paper. Some terms need to be clearly defined. There are also nuances between language, particularly here between French and English of 'protect.' In English, there are several definitions. One is to nurture, safeguard, etc., the other is to use tariffs etc. to enhance domestic industry. Both are valid definitions of the word. We thought the debate on 'protect' would be tomorrow from 11-1. We're not prepared to discuss these terms right now.

Chair: I would have thought a country with a large delegation would be ready at any moment to intervene on anything in the convention. We're having a general discussion now.

Saudi Arabia: the various definitions you've offered are all equal, except that you have switched the terms 'preservation' and 'protect' in one of them. I would tend to agree that these mean the same thing. But we need to work on this more.

Ecuador: It seems that the tendency is to use the UNESCO sense, which is not the commercial sense. Maybe we should use the definition proposed by Brazil on page 47.

Chair: on page 48, there's a new proposal of protection, proposal 1, which I didn't use but others might.

Venezuela: The discussion of the word protect is based on the objective reality that there is assymetry in cultural exchange at the cultural level. Similar to biodiversity, which is threatened, and the environment, which is threatened, there are cultures that are threatened. So our concepts refer to objective economic and social conditions that affect the developing countries. That exist in situations of domination, oppression. So 'protection' is a concept that is intimately connected with rectifying the assymetries that exist.

South Africa: We agree with Brasil on this matter. The word 'protect' has a far greater dimension than a mercantile one. As India indicated, we want to nurture, safeguard, etc. our cultures.

Switzerland: we don't think the term needs definition. If it does need to be defined, we would go with India and Brazil and choose number 4.

Luxembourg: If we're going to redefine all the terms in the convention, it will be well beyond the reach of the layman. We agree with Brasil, South Africa, and others as well. These delegations will recall that we've spoken about protecting human rights, biodiversity, children, intellectual property. All of these concepts of protection have been seen as positive in the framework of their conventions, and we've never had to define protection in those contexts. So we shouldn't do it here either.

Argentina: joins sentiment of Brasil about an unjustified atmosphere of suspicion. If it's really necessary to define protection, we would support the definition proposed by Brasil on page 47 of the spanish version.

At this point the President's draft of a definition of 'cultural goods and services' was circulated. This looks really good; it is based on Article 8 of the Universal Declaration of Cultural Diversity and has eliminated the IP language we were concerned about. So it reads "For the purposes of this Convention: 'cultural goods and services' are those goods and services that embody or yield cultural expressions, conveying symbolic meaning, ideas, traditions and ways of life, and possessing as such a cultural value distinct from whatever commercial value they may have."

Jamaica: protection must be included. It's part of promotion. There's no need to apologize for this term at all.

Australia: In addressing this issue, we went back to the mandate from the general conference in 2003. This mandate was to protect the diversity of cultural contents and artistic expressions. The word protection is there. We do think it's helpful to clarify. We like paragraph 4 as a clear, crisp definition, stronger than that on page 48. We do think that in 19 there has to be clarification with regard to the trade context.

Mexico: 'protection' should be defined.

*Note: there's a white law professor from the Sorbonne who has been assigned by the French government to sit with the Senegalese delegation and 'advise' them (that's French for keep them on track).

Senegal: There are two ways of defining a term: by what it is, or by what it's not. This might get us out of the impasse (?). We could say that what we mean by protect is not protectionism, ie putting up market barriers, etc. Of course, we can't challenge a state right to protect its youth from pornography, hate speech, incitement to racism, etc.

Japan: We think definition of 'protect' depends on how it is used in other parts of the convention. So at this moment we're not sure which definition is better. On the other hand, we think that the word 'protect' has certain connotation, since it is used in other treaties. So in order to avoid useless doubts or possible conflicts, it might be wise to find another word different from the word 'protection' or 'protect.' I prefer the word 'preserve.' But it needs further consideration, so I reserve our position.

Chair: this term is used in innumerable UNESCO conventions. Australia has reminded us that this term came from the General Council. If a state desires to discuss this further, then we will allow that state to continue tomorrow. It's quite clear that there's an overwhelming sense. We may be shadowboxing, but it's the function of the president to ensure that we can reach the maximum amount of consensus. Tomorrow morning the first speaker will be the USA. NGOs will have the usual 6 minutes - I don't want them to go away from Paris saying they weren't allowed to contribute. Should we go on to 'goods and services?' We'll deal with it tomorrow. Chair asks the working group what has happened to the federal clause and the EU clause.

On the federal clause, the working group hopes there will be a draft by tomorrow. On the EU clause, a paper has been circulated in French today. Tomorrow it will be circulated in French and Spanish.

Cuba: I have no intention of overthrowing the chair. Just a question - the two documents that have been circulated, on definitions, have only been circulated in English. We need it in French to be able to work with it.

Chair: we'll get it to you tomorrow morning.

China: We reserved our right yesterday to raise the issue of signature. We feel that article 26 on accession should read: "This convention shall be open to accession by all states after its entry into force."

Chair: talk to legal advisor. Informal working group on article 14 and question of vulnerability will continue after the plenary in room 8. They should look at square brackets and remove them. Drafting committee meets at 6:30, so working group will have an hour and a half.

India: I'm wondering whether this working group should look at your definition of goods and services.

Chair: I think we need US, Japan, Mexico, Brasil, India in the working group on goods and services.

Brasil: Mr. Chairman, I guess you're trying to establish a working group here, but in a game of soccer, you're trying to put me in the field up against 4 or 5 opponents.

Chair: it's too early to set up a working group on goods and services.

Canada: we would support such a discussion taking place.

Chair: Canada, we'll discuss this tomorrow. You can convene a meeting if you want.

Luxembourg: We would be interested in working in an ad hoc group on goods and services.

India: I'm sorry I started this. Perhaps if we finish article 14 early, we can start goods and services, it's representative and there are almost 50 of us in the room.

Chile: If there is a working group on goods and services, we'd like to participate in this.

Chair: there will be a working group on goods and services. It'll be convened by Luxembourg. It wouldn't be helpful to have 50 states there. It would be nice to have 7 or 8. Luxembourg can convene this.

Tomorrow morning, after drafting committee meets, we'll discuss 14 and goods and services.

NGO meeting afterward:
Drafting committee has made it to article 6.1. But the text that will go to plenary is full of brackets and footnotes. They were supposed to distribute this to plenary this afternoon but they didn't. In the revised schedule for the rest of the week, the report from the drafting committee is only planned for Friday.

It's fairly obvious that there will be a third experts meeting. The drafting committee will continue meeting, but we're not sure when. There's another possibility, which would be the President taking on the responsibility of the plenary. This is unlikely though, because the plenary wouldn't give him authority to do so.

Plenary tomorrow at 11.