The Power of Culture

For years the fight for l'exception culturelle, the effort to exclude cultural goods and services from the rules of the WTO (World Trade Organization), was vigorous and high profile. Recently, it has faded. This is because the Doha round of WTO negotiations has ground almost to a halt and audiovisual services have taken a back seat to issues like agricultural subsidies. It is also because some proponents of the new Unesco cultural diversity treaty thought that adopting international rules outside the WTO would create a legal barrier to prevent the WTO agreements from constraining national cultural policies.

In his new book Free Trade and Culture, Peter Van den Bossche appropriately focuses our attention back to the WTO. Given that WTO negotiations will reinvigorate after the new U.S. President takes office and most analysts now understand the Unesco Convention on the protection and promotion of the diversity of cultural expressions is only a political tool in the ongoing battle, Van den Bossche has produced a timely and authoritative analysis on how WTO Agreements do, and do not, constrain cultural policy-making.

Van den Bossche reminds us that WTO law 'applies in full' to cultural goods and services. Since the General Agreement on Tariffs and Trade applies to all cultural goods, he analyses the rules and exceptions to see what scope governments have to develop measures supporting national cultures. Similarly, he looks at each of the WTO agreements from the cultural perspective. In his analysis of the General Agreement on Trade in Services, he notes that since very few countries made commitments with respect to cultural services, most countries continue to have few limits on what they can do in these fields.

The book has shortcomings. For example, Van den Bossche seems unaware that Canadian book publishers receive significant financial subsidies from governments, thus he does not analyze how these grants might be 'actionable subsidies' under the Agreement on Subsidies and Countervailing Measures. However, since it is a large and complex topic, these are small quibbles.

The author offers important insights for cultural activists. For example, in analyzing the GATT 1994 Article XX exception for measures 'imposed for the protection of national treasures of artistic, historic or archaeological value', Van den Bossche argues that "under the auspices of Unesco, a gradual development has taken place that suggests a broad range of items are under protection." He thus postulates, "If an appropriately broad and contemporary interpretation is given to this provision, it could be invoked by WTO members to justify otherwise GATT inconsistent measures imposed for the protection of, for example, domestic works of poetry, art movies or classical movie CDs."

While Van den Bossche believes WTO Members currently have "a reasonable degree of freedom to protect and promote national cultural goods and services." He also notes that, if liberalization continues its course WTO law may become insufficient. He thus argues that the inclusion of an explicit exception for cultural values in both the GATT and GATS "would be appropriate."