Chlorine chicken or economic growth? The negotiations between Europe and the US on the TTIP free trade agreement are widely discussed. What is the effect of TTIP on culture?
In 2013, the European Union started negotiations for a free trade agreement (Transatlantic Trade and Investment Partnership - TTIP) with the United States. According to the European Commission for which the Commissioner for trade Cecilia Malmström is the leading political negotiating partner, 31 million European jobs already directly depend on exports, and it is expected that a trade deal between the US and Europe would make it easier and cheaper for EU companies to export to the US, get investment from the US, and to import goods and services needed for final products and services1.
At the same time there is great concern that TTIP could affect consumers rights, environmental, health and workers standards, and that it will only be beneficial for big enterprises. A major point of criticism is the investor-to-state dispute settlement (ISDS) to which the EU presented an alternative on 12 November 2015, the “new investment court system” that according to the EU will "ensure that all actors can have full trust in the system. Built around the same key elements as domestic and international courts, it enshrines governments' right to regulate and ensures transparency and accountability”2. This proposal is now an important component of the negotiations between the EU and the US.
The EU addressed the accusation of non-transparency by providing its texts to the Members of the European Parliament and by publishing major texts and results of the negotiations on its website. Unfortunately, this is a one-sided endeavor as the US has not provided access to its texts and proposals. Therefore, the plea for more transparency must continue.
Culture and TTIP
In May 2013, the European Parliament voted for the exclusion of culture and the audiovisual sector from the TTIP negotiations and in June 2013 the Council of the European Union agreed that audiovisual services would not be covered in the mandate given to the European Commission. This means that culture as a whole is not excluded just audiovisual services. However, the EU wants to include a concrete reference to the right of the parties to take measures necessary to achieve legitimate public policy objectives for promoting cultural diversity as laid down in the UNESCO Convention on the protection and promotion of the diversity of cultural expressions.
In July 2014, the EU published a paper on TTIP and culture which claims that the protection and promotion of cultural diversity are key aims of the EU. In signing the 2005 UNESCO Convention, the EU is legally-bound to promote cultural diversity which means that in trade talks the EU takes a position which enables the support and promotion of cultural activities [LINK].
Furthermore this paper states that “the EU will be able to exclude from the talks any sectors with a strong cultural component” (p.4). However, it also is clear that the so-called ‘cultural exception’ has no legal status under EU law but the concept of ‘promotion of cultural diversity’ applies.
In an explanatory publication on the “myths” of TTIP the EU clarifies that TTIP would:
- leave out the audiovisual sector from any commitments the EU makes to open up the EU market to US exporters
- uphold laws on books that fix the prices publishers charge
- ensure governments can continue subsidizing cultural industries and the arts just as they do currently3
Bearing in mind that the US is a very strong negotiating partner that has not signed the UNESCO Convention, it is of utmost importance that the EU remains vigilant in its negotiations.
Statement of the European Music Council (EMC)
The European Music Council welcomes the EU’s commitment to the protection and promotion of cultural diversity within the TTIP negotiations, and would like to appeal to the EU to consider the following aspects for the next rounds of negotiations.
General exception of Culture from the TTIP negotiations
Until now only the audiovisual services have been excluded from the TTIP negotiations (film, TV and radio), whilst other sectors, such as music (in all its forms), literature, museums, theatre, libraries, etc. have not. To ensure that culture is not affected by the trade agreement, a general exception for culture in all binding TTIP chapters should be agreed. The suggested reference of the EU in the preamble to the UNESCO Convention is not sufficiently binding and it is even more doubtful that the US will accept a reference made to a Convention they have not signed.
As TTIP uses a negative list approach, a general exclusion of culture is needed. If such a general exception is not possible, the EU should consider a positive list approach instead.
Future-proof and technology-neutral definitions
Technological developments have fundamentally changed the way in which culture is created, distributed and consumed. It is not possible to predict from a present-day perspective what technologies and distribution platforms will become relevant in the next ten, twenty or thirty years. As a result, it is essential to define exceptions for culture and media on a technology-neutral basis. It must be considered beyond doubt that a book is a cultural asset, irrespective of whether it is published in print form or as an e-book. The same applies with regards to the film, TV, radio and music sectors. In view of the dominant position of US entertainment, media and internet corporations, it is precisely in these sectors that the US has a particularly keen interest in seeing the market opened up as widely as possible. With regard to online services in the realm of film, TV, radio and music, it must also be considered self-evident that these are cultural services, and not, as the US argues, information and telecommunications services for the purpose of data transmission. It is therefore important that TTIP does not affect the right to regulate.
Investment protection clause
Although the EMC welcomes the proposal made by the European Commission on a new investment court system, TTIP does not need any provisions on investment protection or investor-state arbitration clauses. In both, the US and the EU and EU Member States, the principle of the rule of law applies. Likewise, in the US and the EU, there exist established judicial systems. Recourse to the law is available to all.
No negotiations on authors’ rights or neighbouring rights
In an international context, copyright and neighbouring rights are negotiated within the framework of the World Intellectual Property Organization (WIPO); here, international agreements on authors’ rights and neighbouring rights are concluded. As for what additional benefit a chapter in the TTIP relating to rules on authors’ rights and neighbouring rights might offer is not clear, particularly since European author's rights and the US copyright system are fundamentally different. The basic principles of European authors’ rights, which prioritize the author and the author's economic and ideal rights, are not negotiable.
The EMC welcomes the significant efforts of the EU to be more transparent and to provide access to proposals for the negotiations. However, it also observes with great concern that these efforts are unilateral and that the US negotiation party does not make its proposed texts accessible, only in dedicated reading rooms and not even to representatives of national governments.
The next TTIP negotiations will take place in February 2016.
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