Towards cultural-rights-based-approaches to reconciling trade liberalization and cultural diversity : the role of the WTO in governing trade in motion pictures

Abstract

Unbalanced trade flow in motion pictures triggered the debate on how trade in cultural products should be governed under the World Trade Organization (WTO). The disagreement between free trade advocates and cultural diversity proponents has polarized the discussion and, as a result, the liberalization of trade in cultural products has not progressed far. This research joins the ‘trade and culture’ debate with a view to reconciling trade liberalization and cultural diversity, focusing particularly on the WTO’s role in governing trade in motion pictures. To this end, I made three major inquiries. First, what are the reasons for reduced cultural diversity in the trade of motion pictures? Second, what is the role of the WTO in the global governance of trade in motion pictures and how effective is the WTO in reconciling trade liberalization and cultural diversity? Third, how could the WTO effectively reconcile trade liberalization and cultural diversity within its competence limits without undermining its legitimacy?

I argue that it is possible for the WTO to reconcile trade liberalization and cultural diversity in governing trade in motion pictures by adopting cultural-rights-based approaches. By carrying out case studies on film markets in the US and China, I found that decreased cultural diversity in the motion picture market should be attributed to market failures and regulatory failures, instead of trade liberalization per se. Preserving and enriching cultural diversity in the globalized motion picture market calls for combined efforts from different levels of authorities to identify and eliminate those constraints. The WTO plays an influential role in shaping domestic cultural policies and measures. Nevertheless, upon an examination on how the WTO would review Chinese cultural policies and measures governing trade in online motion picture services, I found that the WTO has contributed little to or even been counterproductive in facilitating this needed cooperation. That is because current approaches could not offer the WTO sufficient normative bases to distinguish between legitimate cultural policies that are necessary to preserve cultural diversity and protectionist measures. A holistic view is needed for the WTO to clarify its role in the global governance of trade in motion pictures. Based on the correlation between cultural diversity and cultural rights, I suggest that the WTO adopts a defensive paradigm of CRBAs in governing trade in motion pictures so as to bring in cultural implications of trade into the process of WTO’s decisions. WTO tribunals are thus enabled to relate to cultural rights standards to draw a line between legitimate and illicit cultural policies. By so doing, Members could justifiably take measures to preserve cultural diversity by basing their cultural policies and measures on the need to protect cultural rights. On the other hand, WTO tribunals could prevent unnecessary trade restrictions by limiting applicability of general exceptions if these measures fail to respect cultural rights.