Culture in times of cholera
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Culture in Times of Cholera A Vision for a New Legal Framework Promoting Cultural Diversity Christophe Germann* I. Introduction
This paper focuses on the policy goal of "cultural diversity" for "international trade related cultural goods and services", and on strategies and means to achieve this goal for countries that cannot afford substantial subsidies for these purposes. It aims at putting law in context, and at discussing some new legal solutions that may serve in the context at stake. This contribution analyses "trade related" cultural diversity from the legal perspective by addressing free trade and culture laws and policies as well as intellectual property and competition rules. One could not exclude, however, that a new legal framework achieving a higher degree of cultural diversity of commodified contents would have a beneficial spill-over effect on non-commodified art and entertainment as well. To avoid uniform contents and forms of mass cultural goods and services such as cinema, literature and music, that contribute to a uniform way of thinking and feeling ("pens6e unique"), States must take action. This paper argues that international agreements containing mere programmatic and declaratory clauses on cultural diversity will not be sufficient. It therefore advocates further exploring the potential of competition and intellectual property laws and policies to contribute to improving the situation. Competition laws that specifically take into account the economic specificity of cultural industries may contribute to creating a level playing field that grants equal opportunities to content creators and producers from different cultural origins. For the time being, WTO Member States remain fully competent to legislate in this area in order to provide legal safeguards against abuses of dominant market positions that may damage freedom of speech and, eventually, the functioning of democracy. Furthermore, this paper proposes to explore and discuss an innovative legal approach in order to bring about cultural diversity based on a set of rules prohibiting "cultural discrimination". This idea is inspired by the prohibition of economic discrimination that underlies WTO law and that is articulated in the basic principles of national treatment and most favoured nation. The contemplated new concept is intended to establish an institutional dialogue based on case law between the WTO and an international organisation in charge of cultural matters, such as for example the UNESCO, where a convention on cultural diversity is currently in the process of being negotiated. *
Chrislophe Germann, DEA in European Studies, is attorney at law in Geneva (www.germann-avocats.com) and research fellow at the Institute of European and International Economic Law of the University of Berne Law School (www.iew.unibe.ch). The author wishes to cordially thank lic iu~ Rachel Liechti |br her review of this paper. The author remains exclusively responsible l'or the content of this contribution that reflects his personal opinions.
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