[WSIS CS-Plenary] CRIS+ intervention on relationship of the proposed UNESCO CCD to other treaties

[Sasha Costanza-Chock]

CRIS+ intervention on Article 19 of draft UNESCO convention on the 
protection and promotion of cultural contents and artistic expressions


Delivered to the plenary of the II intergovernmental session


Monday, February 7th, 2005


Mr. chairman, delegates,

On Article 19 - Relationship to other instruments: all of the NGO 
signatories to the position of the Communication Rights campaign 
strongly support a modified version of Option A over Option B. Like 
Brazil, Andora, Vietnam, and others, our position is that Paragraph 2 of 
Option A should become the full text of Article 19, as follows:

"The provisions of this Convention shall not affect the rights and 
obligations of any State Party deriving from any existing international 
instrument, except where the exercise of those rights and obligations 
would cause serious damage or threat to the diversity of cultural 
expressions."

Our rationale:
First, it is imperative that option A be adopted over Option B. Option B 
fundamentally undermines the purpose of this instrument and is 
unacceptable. If states really care about protecting and promoting the 
diversity of cultural contents and artistic expressions, then they must 
be willing to support this convention, or at least take it into 
consideration, when and if it does conflict with other bodies of 
international law. For example, there is in the past few weeks a US firm 
challenging a Canadian program that gives arts subsidies only to 
Canadian nationals as a trade violation. In another example, speaking 
for our US constituents, US citizens spent the last two years mobilizing 
to successfully defeat the US Federal Communications Commission when it 
moved to allow even greater cross media consolidation in US markets. 
We're concerned that limits on cross ownership and consolidation are 
threatened by the current trade regime. We feel that if this Convention 
is to be meaningful, states must be able to refer to it in cases of this 
nature. That wouldn't be possible under option B or any similar variant 
that subordinates the Convention to all existing instruments.

Next, paragraph 1 of option A should be deleted because

- It fails to promote a balance between the rights of the public and the 
rights of copyright owners, as expressed in Article 27 of the Universal 
Declaration of Human Rights and in the UNESCO Universal Declaration on 
Cultural Diversity,

- We've heard many interventions stating that the current IPR regime is 
working well to promote diversity, but in fact as we all know the impact 
of the current intellectual property rights regime, which favors the 
rights of broadcasters and rights holders over the rights of authors, 
creators, and the public, on cultural diversity, is in fact contested. 
For example, look at the current discussion within the World 
Intellectual Property Organisation (WIPO) where Brazil, Argentina, and 
other States, strongly supported by civil society, have proposed to 
review the effectiveness of present IP regimes in meeting the interests 
of developing countries. Such constructive moves could be reinforced by 
a more balanced treatment here of the relationship between intellectual 
property rights and cultural diversity. Certainly it would be better for 
the draft Convention to be neutral on the issue rather than to reinforce 
and strengthen the existing regime. This can be accomplished by deleting 
paragraph 1 of option A.

- In addition, there is strong precedent for the wording we support for 
the clause on relationship to other instruments, most notably Article 
22.1 of the 1992 Convention on Biological Diversity (CBD), which states:

“The provisions of this Convention shall not affect the rights and 
obligations of any Contracting Party deriving from any existing 
international agreement, except where the exercise of those rights and 
obligations would cause a serious damage or threat to biological diversity.”

For these reasons, we emphatically urge delegates and the drafting group 
to reject Option B, and adopt paragraph 2 of Option A as the full text 
of Article 19.

We therefore support the Brazilian position, which was also supported by 
Andora, Vietnam, and others.

Alternatively, we could support Argentina and Haiti on proposal 1 on 
page 88 of the English text.

Thank you.

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Contact:

Sasha Costanza-Chock
global at freepress.net
www.mediatrademonitor.org