(Original in French)

Pascal Rogard^[1]

This may be a provocative question but it must be asked, for the upheavals brought about by digital technology, not to call it a “revolution”, have touched many areas of our lives and economy. Of course they have not spared culture, either, which until then had enjoyed a particular statute and dispensation policies.

I – Cultural Diversity: a Concept Recognized on the International Scene 

The political existence of the concept emerged during the negotiations that took place between Europe and the United States in the eighties and nineties and really took shape during the commercial negotiations of the General Agreement on Trade on Services (GATS) during GATT’s (General Agreement on Tariffs and Trade) Uruguay Round, which led to the creation of the World Trade Organization (WTO).

Led by movie directors who realized the dangers presented by this tendency towards the liberalisation of commercial exchanges, a movement saw the light, centred around four strong principles: cultural goods and services are not products like any others; cultural policies must be preserved from commercial discussions; the elimination of cultural policies and, specifically, of investment and broadcasting quotas promoting local and national creation must be avoided; risks of hegemony must be resisted and diversity of creation kept alive.

Thus was cultural exception born, to successfully extract culture from market logic only and recognize the right of States to adopt cultural policies and policies to promote local creation.

A little over 10 years later, on October 20, 2005, cultural exception became cultural diversity and earned full international legal recognition when the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (hereafter referred to as CDCE or Convention) was adopted in Paris. Rarely in the history of international law was a convention adopted, signed and ratified so quickly. Today, more than 140 States have signed it.

II – What about Digital Technologies?

Many take advantage of the fact that the term “digital” itself is absent from the CDCE text to jump to the conclusion that the effectiveness of the Convention and its principles would stop at the border of this new digital world. Yet its absence is no more an oversight than an intent to freeze the Convention in a world without a vocation towards evolution. It was their wisdom, rather, that led the writers of the Convention to leave room for the possibility to take technological evolutions into account when implementing this unique international tool.

The challenge faced by cultural diversity is not any lesser today. Fears of the hegemonic domination of one culture over others and of circumventing policies that promote creation are actually revived by digitization.

Should one therefore deduce that digitization is nothing but a threat to cultural diversity? One must avoid any univocal or unbalanced position and instead, take the measure of the opportunities as well as the risks brought about by this new digital world. It could indeed be an opportunity for creation and, in particular with the advent of a wider range of tools to create and exhibit art works, discover new artistic forms, develop new ways of financing artwork, widen the access to art for the audiences. With it the dissemination of cultural works undeniably gains a new promotion mode as well as tools that energize and enhance their impact. In it, creation finds new means to express itself.

Yet it is also true that the digital economic model is centred on seeking the highest profitability for creative works through powerful intermediaries, the internet giants also known as “GAFA” (Google, Apple, Facebook, Amazon), who hold a dominant position and whose natural vocation is not to defend and support creative diversity. In the end, digitization could be, to culture, what globalization was to industry. The weakening of national regulations supporting creation, the risk of culture uniformisation, outsourcing movements, the impoverishment of creators are, as a matter of fact, a few of the direct and sometimes violent effects that are striking culture today.

III – Act and Regulate 

Faced with these mutations, it is urgent to act and regulate. To act and seize the potentialities offered by digitization in enhancing and energizing the creative movement and facilitate its dissemination to audiences. Also to regulate, for the principles of cultural diversity remain as indispensable and indisputable as ever. Cultural policies and their modalities must evidently evolve to account for the consequences of digitisation, but the right of States to defend authors’ rights, to develop tools that support local and national creation, to adopt measures to finance cultural public service and cultural actions are not relics from the past. 

IV – The European Challenge 

This challenge may first be answered at the European level, for the risks of an extensive deregulation must not be underestimated. Nearly 20 years after the 1993 GATT negotiations, the surprise discovery that commercial discussions had been initiated between Europe and the United States with the aim to reach a free trade agreement confirmed those fears. The liberalisation of audio-visual and cultural services which the European Commission, under Mr Barroso’s presidency, wished to negotiate with the Americans, would have had the immediate consequence of challenging the policies that support cultural diversity in Europe, particularly with regard to new online services.

Fortunately, the mobilisation shown by France and the European Parliament strengthened the exclusion of audio-visual services from trade discussions and even extended it to digital services such as video on demand. But Europe’s temptation to turn cultural goods and services into commodities like any others, without any particular entitlement to set up specific regulations to finance creation and protect creators, is increasingly apparent: authors’ rights being called into question, the fight against the territoriality of rights despite its being the basis for audio-visual and cinema financing, and the benevolence demonstrated towards the internet giants who always set up shop in the States where taxation is the lightest and obligations favouring creation are the least, speak volumes about the risks that come with a slashed, diminished cultural diversity. 

Without a strong intervention from public authorities to impose rules that favour creation, in all its diversity, and support creators, the cultural dumping that would then prevail would amount to the consecration of the reign of the mightiest and most standardised. The exact opposite of cultural diversity. 
It is up to Europe to give itself the necessary means and tools to establish the balanced and protecting framework of this “cultural diversity 2.0”. 

If Europe does not meet the challenge, it would then have a heavy responsibility in the emergence of a politically incoherent, culturally disastrous and industrially dangerous model. Politically incoherent because it would indicate Europe’s incapacity to honour its commitment in favour of cultural specificity and diversity, notably expressed in its ratification of CDCE. Culturally disastrous because it would weaken all policies, notably broadcasting quotas and investment obligations, which have helped sustain the drive of French and European creations. Industrially dangerous because it would strengthen even more the American internet and digital giants to the detriment of French and European operators who honour their obligations and their commitments with regards to cultural diversity.

V – A UNESCO Convention 2.0

Ten years after its establishment, the Convention must be revisited in the light of the digital challenge. Neither obsolete nor anachronistic, it does not need to be completed with new articles, for its universality is accompanied by the vocation that it can be applied to all supports enabling the dissemination and distribution of cultural works. Nevertheless, Parties would benefit from adopting operational guidelines to assist the States as cultural actors in the implementation of the Convention so as to better integrate the digital component. Work is already underway in this very direction since last year and will translate into follow-up discussions, which will be held at the UNESCO at the end of 2016.

It would be erroneous to believe that our digital world put a definite end to the threats of uniformisation, standardisation and to the fears of a new form of imperialism, which indeed remains dangerous for the future of cultural creation and the necessary dialogue between civilisations. 

Faced with this reality, we make ours Lacordaire’s famous quote: “Between the strong and the weak, between the rich and the poor, between the lord and the slave, it is freedom which oppresses and the law which sets free.” How better to call for the establishment of regulations preserving cultural diversity in the digital era! 

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