(Original in French)

Lilian Richieri Hanania & Anne-Thida Norodom^[1]

I – The 2005 UNESCO Convention on the Diversity of Cultural Expressions and Digital Technologies

Adopted on October 20, 2005, the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (CDCE) (in this volume: Vlassis & Richieri Hanania, V.1, text 19) constitutes a normative framework for cultural measures and policies, and for international cultural cooperation. It relates to the governance of the cultural industries and of the exchanges of cultural goods and services. In effect since March 2007, it has already been ratified by 144 Parties, including the European Union, which testifies to the importance of the matters it deals with.

Although its object goes beyond the “trade and/versus culture” debate, this particular issue has been central to the impulse that led to the negotiation and adoption of the Convention, since trade agreements can restrict the policy space enjoyed by States in terms of cultural policy. In brief, trade liberalisation can lead States to commit to non-discriminating against products and services similar to national products and services (obligation of national treatment), as well as between foreign products and services, for a State cannot give preferential treatment to a partner to the detriment of another (most favoured nation clause). This logic applies at the multilateral level (WTO Agreements) but also in the context of regional and bilateral trade agreements. Indeed, from a strictly legal perspective, there is no such thing as “cultural exception” within WTO Agreements and the latter can have multiple effects on trade in cultural goods and services (see, for example, Richieri Hanania 2009 and, in this volume: Richieri Hanania, V.2, text 20).

Regarding goods and services electronically supplied or connected to information and communication technologies, the WTO rules and those contained in the agreements signed in the past few years by the European Union presently seem more concerned with the diversity of cultural expressions than the agreements concluded with the United States (in this volume: Richieri Hanania, V.6, text 23) (RIJDEC 2015). In the agreements negotiated with the United States, a new “digital products” sui generis category was created so as to reinforce the parties’ non-discrimination obligations. Within the WTO, the regulatory framework most directly applicable to the digital environment is composed of the Information Technology Agreement (ITA) (in this volume: Neuwirth, V.3, text 21), commitments related to e-commerce (the essence of which laying notably in the obligation for the Members not to apply custom fees to electronic transactions^[2]) and commitments related to services, on the part of each Member, adopted as part of the General Agreement on Trade in Services (GATS), inasmuch as they cover the electronic supply of services. As to the trade agreements negotiated by the European Union, they also grant some flexibility to the commercial partners involved, by promoting cooperation within different themes and policies related to e-commerce, while excluding audio-visual services (whether analogue or digital) from non-discrimination commitments adopted by the parties within those agreements.

Because it is technologically neutral, the CDCE offers States political and symbolical support, so a specific legal treatment may be granted to cultural goods and services in trade agreements, regardless of their analogue or digital nature (in this volume: Rogard, chapter 17, text 10). Indeed, the CDCE reaffirms the legitimacy of national cultural measures and policies, which stems from the specificity of cultural goods and services, itself a product of the double, cultural and economic dimension, of these goods and services. By relying on the CDCE when negotiating trade agreements and if they have the political will to do so, the Parties to the Convention can refuse to liberalise cultural sectors in which they wish to maintain their policy space and adopt the cultural policies best adapted to their economic, cultural, political and social circumstances. In the context of the new technologies, maintaining such freedom seems all the more essential as the evolution of the market of digital cultural contents is extremely dynamic, which calls for a fast and flexible intervention from States to respond to the challenges to cultural diversity.

With a view to more balanced and diversified exchanges of cultural goods and services, the States’ intervention at the national level, through public policies, must be complemented by international cooperation actions. This is the second large component addressed by the CDCE, with particular focus on the contribution of cultural diversity to sustainable development. Following on the studies and reports produced by UNESCO in the last few decades with respect to culture and development and reiterating the fundamental role of culture in sustainable development (article 13 of CDCE), the CDCE has been a cornerstone of the efforts aimed at integrating cultural issues within the 2015 Objectives of the United Nations for Sustainable Development (United Nations Sustainable Development Goals (SDGs)) (United Nations 2015). These concerns appear particularly in paragraphs 8^[3] and 36^[4] of the SDG Declaration, and in Objectives 4.5, 4.7, 8.9, 11.4 et 12.b. The clear link established by the CDCE with the concept of sustainable development – a concept which, since its origins, aims at coordinating distinct or even opposite legal themes and systems – invites a global, integrative and open perspective on its object, able to shed light on the complexity of the questions it raises, in terms of topics as much as actors and action levels affected – ranging from the local to the national, regional and international levels. Indeed, the Convention covers, due to the complexity of its object, a wide array of topics, issues and objectives, which are often dealt with by varied actors and international organisations. Faced with the impression of fragmentation of law and the national and international fora concerned, the CDCE calls for greater coordination and coherence, as these two elements are essential to its useful and effective implementation (Richieri Hanania 2014).

The Convention thus adopts a systemic vision, taking into account numerous topics and issues tangled together (Richieri Hanania 2009; Richieri Hanania 2014: 299-305). With such a perspective, the CDCE makes it possible to respond adequately to the complex reality of the creative economy, characterised as it is by new technologies, innovation, but also paradoxes and oxymoronic concepts (in this volume: Neuwirth, chapter 8, text 3). Its implementation demands, first of all, greater coordination and coherence between the different bodies where these issues are debated, at the national as well as international level. Thus, international organisations, while acting in their respective domains of specialised competence, must work together, developing networks and joint actions (in this volume: Vlassis, chapter 24, text 13). The Parties to the CDCE must also confer more with each other, so as to ensure an adequate articulation between the principles and objectives of the Convention and other domains directly or indirectly connected to the international governance of the cultural goods and services sector. At the national level, government representatives must also ensure the coherence of the States’ positions as defined in these various areas, which increasingly go beyond the traditional cultural field within the creative economy (Richieri Hanania 2015a; Richieri Hanania 2015b; RIJDEC 2015). The reaffirmation of culture as a fundamental part of the concept of sustainable development reinforces the necessity for articulating and bringing together different domains and requires that the adoption of public policies and their adaptation to the digital era by the Parties to the CDCE occur by weaving connections and bridges between the different fields of action. Educational policies offer a striking illustration of this (in this volume: Carbó & Maceiras, chapter 35, text 16).

The complexity of topics and actors facing the CDCE seems to have increased in the context of new technologies (in this volume: Ranaivoson, chapter 16, text 9), due among other things to the speed and magnitude of the changes undergone by the latter (in this volume: Schwartz, chapter 6, text 2), as well as to the difficulty involved in understanding this new reality (in this volume: Marenghi, Hernández & Badillo, chapter 14, text 7) before any action or reaction aiming at the diversity of cultural expressions. The whole value chain of the cultural goods and services sector was impacted by digital technologies. The film (in this volume: Film Sector), music (in this volume: Assis, chapter 5, text 1) and book sectors (in this volume: Book Sector) offer the most striking examples of the extremely dynamic evolution of the market. Nevertheless, the other cultural sectors, such as those of performance arts or museums, are also transforming with digital technologies. It is a shifting process which, while not entirely controllable, requires adequate public policies that are reactive but also capable of guiding the transformations affecting the market towards diversity (in this volume: Burri, chapter 15, text 8). Now more than ever, legislators and political deciders must show creativity (in this volume: Neuwirth, chapter 8, text 3) and adopt a prospective approach, turned to the future, open to forthcoming changes while also vigilant and faithful to the objectives followed thus far in terms of public policy.

Since digital technologies touch all aspects of contemporary life and escape national borders, it is becoming increasingly necessary to act on different fields, with the collaboration of other countries and the contribution of all stakeholders, bringing their expert understanding in their respective competence field. This is all the more important as the potential of the creative economy in terms of economic growth, and in building tolerant, pacific societies that are respectful of diversity, is immense. All the actors of the digital content market must be involved and called to make a contribution. All the international organisations working in the field of culture, digital technologies, but also more generally of sustainable development, must work together. Finally, the civil society must be widely mobilised (in this volume: Vallerand, chapter 21, text 12), both by concrete projects in favour of cultural diversity and by its monitoring and coordination action at the national and international levels.

The efforts undertaken within UNESCO in order to implement the CDCE brought about awareness of the various challenges, obstacles, threats and opportunities that new, and digital technologies in particular, constitute for the cultural industries and for the diversity of cultural expressions. The 2005 Convention Secretariat is currently setting up operational guidelines that deal specifically with the digital issue (in this volume: Rioux & Fontaine-Skronski, chapter 20, text 11), so as to impel the Parties to the Convention and civil society to effective actions. This publication aims to contribute to this task, by providing food for thought as well as concrete proposals.

II – Objectives and content of the publication

Fruit of the cooperation between Lilian Richieri Hanania (see mini-biography) (CEST / University of São Paulo (USP), Brazil) and Anne-Thida Norodom (see mini-biography) (CUREJ / University of Rouen, France), this publication aims at contributing to the understanding of the diversity of cultural expressions in the digital era and to the reflection on the most appropriate measures and policies needed to respond to the challenges and opportunities related to this theme.

It contains theoretical studies, opinion documents, case studies and accounts of several projects and practical initiatives which, based on various disciplines (law, economy, political and social sciences, journalism, information technologies, engineering)^[5], demonstrate how new technologies can be used to protect and promote the diversity of cultural expressions. A trilingual multidisciplinary publication (French, English and Portuguese), it also aims at contributing to online linguistic diversity.

It first presents some texts that were selected by the editors after a call for proposals on a large spectrum of topics, covering: the context of creative economy, as well as the challenges and opportunities brought by digital technologies to the diversity of cultural expressions; the State regulation framework of the cultural market in the digital age (initiatives and policies aiming at diversity, from the viewpoint of intellectual property, education, sustainable development, etc.); the contribution of non-State actors to the diversity of cultural expressions online (role of civil society and concrete projects leading to a diversification of the offer of digital contents); and international action and cooperation related to the diversity of cultural expressions on the Internet, including the role of international organisations and their joint action in favour of online diversity.

The selected texts are available in English, French and Portuguese, thanks to the financial support of our partners (see Partners), which enabled us to order the necessary translations. It should be noted that the reference lists at the end of each text were not translated but instead kept in the same language as the original text. The original language of each text was indicated in each translated version. As to the quotes contained in the texts, wherever an official version existed in the target language, it was used in priority. When this was not the case, we offer a free translation, produced by our translation services. The authors have read the translated texts but naturally only take responsibility for the original versions submitted to them. Despite the efforts they have put in reviewing the texts, should any imprecisions or misinterpretations remain, the editors take responsibility for them and shall be grateful for any comment or suggestion readers may wish to send them at the email address CDEC_et_numerique@yahoo.com.

Moreover, the publication contains videos by international experts, selected during three conferences that took place in São Paulo (Brazil) and Rouen (France):

• I Conference on Cultural Diversity and New Technologies organised in São Paulo by the CEST/USP on July 2, 2015 (see programme, text 24) (see report, text 25);
• Rouen Symposium (CUREJ/University of Rouen) on the Implementation of the UNESCO Convention in the Digital Age on December 11, 2015 (see programme and report, text in French, text 26);
• II Conference on Cultural Diversity and New Technologies organised in São Paulo by the CEST/USP on May 19, 2016 (see programme and report, text 27).

The selected videos are only available in one language each, but the editing work performed enabled an optimal improvement of their sound quality, so that some of them at least may be used with the automatic subtitle function resulting from YouTube voice recognition technology. It should however be noted that not all videos issued from the three conferences were edited, but that additional funding in the future might enable us to enrich this publication even further. As a matter of fact, we have opted for a multimedia publication not only to ensure its coherence with the theme (digital technologies), but also to be able to enrich it regularly with new written contributions, videos and comments, best reflecting digital reality and able to adapt to its fast paced evolution.

With this reality being so difficult to comprehend, setting up policies and adopting appropriate actions is problematical and this publication aims at offering an analysis which is better adapted to the complexity of the theme, able to go beyond the fragmentation of the different fields of study and to take into account specificities, priorities and national and local circumstances, while presenting a vision of what the diversity of cultural expressions covers in the digital age that is integrative, systemic and open to its context and to the future. Complex thinking, as advocated by Edgar Morin since 1970, seems particularly well suited to such an analysis: multidimensional thinking which accepts incompleteness and ambiguity of every piece of knowledge, but nevertheless attempts to unite what is diverse, to turn antagonisms complementary, to bring together empirical and rational experiences (Morin 2005: 11-12). Interculturality, the cultural dialogue, cultural exchanges, tolerance of cultural differences… all these require an integrated diversity, paradoxically conceived both in human unity and diversity and which cannot be understood without its different contexts and the interactions occurring in them.

Redesigning cultural policies within a digital strategy requires going beyond simplifications and polarisations. There is no one solution nor a model to follow. Successful projects and best practices are only useful inasmuch as they can be replicated appropriately to conditions and contexts that are at once specific and changing. As highlighted by Edgar Morin, complexity “is not only quantities of units and interactions that defy our possible calculation; it is also made up of uncertainty, indetermination and random phenomena” (Morin 2005: 48-49). In order to integrate chance while acting within the creative economy in favour of diversity, it is necessary to resort to the inventiveness and creativity that lay at the core of this concept. Rigid programmes must make way to strategies, understood as permitting, “from an initial decision, to envisage a certain number of scenarios of action, scenarios that can be modified according to information arriving in the action and according to chance occurrences that will occur and disrupt the action” (Morin 2005: 106).

Thus, and as argued still by Edgar Morin, “political strategy (…) requires complex knowing, because strategy plays itself out by working with and against uncertainty, chance, the multiple play of interactions and retroactions” (Morin 2005: 21). Technological evolution reinforces further these uncertainties and chance occurrences. In the cultural field, this calls for taking into account the complexity of objects and actors involved in any political decision linked to the governance of the cultural industries and refers, ultimately, to “the impossibility to homogenise and reduce” (Morin 2005: 141). Thinking diversity in the face of new technologies must integrate this complexity. Regulating the cultural industries in the digital age involves considering, in their individuality as much as in their association, the different political fields and the various branches of law that may impact, directly or indirectly, the operation of these industries, such as, to name just a few examples, international trade law, intellectual property (in this volume: Kauark & Cruz, chapter 10, text 4), competition law, human rights, corporate law, tax law (in this volume: Carvalho & Makiuchi, chapter 12, text 5), contract law (in this volume: Martin, chapter 13, text 6) or the governance of the Internet. The CDCE seems particularly suited to this type of exercise. It offers a systemic and integrative vision of the exchanges of cultural goods and services and of the governance of the cultural industries (Richieri Hanania 2014: 299 et s.; Richieri Hanania 2015a; Richieri Hanania 2015b), based on the incessant articulation between themes that are often dealt with separately (trade, culture, development, international cooperation, creative economy, among others). Such a systemic approach, in which the system must necessarily stay open and in continuous relationship with its ecosystem (Morin 2005: 31-33), calls for transdisciplinarity, for taking both unity and differences into account, as well as complexities in the articulation and association between the various aspects it covers.

While it does naturally not claim to cover exhaustively all the fields linked to the diversity of cultural expressions in the digital era, this publication attempts to organise and articulate the written contributions and videos selected so they may be best exploited to improve the reflection on this theme. The first part deals with the topic of challenges and opportunities related to digital technologies for the diversity of cultural expressions (Part I), offering various visions focused on multiples aspects of the impact of new technologies on the cultural sector. It leads to a second part that deals with the integration of digital technologies in the development and adoption of cultural policies within the reality of new technologies and the creative economy (Part II). Within Part I, the texts and videos selected focus first on the market of cultural goods and services in the digital age (I.A), before turning to the theme of adapting law and policies to digital technologies (I.B). Then, in Part II, the focus lays first on measuring cultural diversity within the digital context (II.A), which constitutes the premise for a second sub-part on promoting diversity through the implementation of the CDCE (II.B). This second sub-part is focused on the CDCE and its implementation within the digital environment.

Finally, Part III contains concrete initiatives and projects that integrate digital technologies so as to foster diversity. All these contributions, be they available in text or video format, are also categorised by sector (film, music and book sector) and author. Several supplementary texts and interviews (Part IV and V) also add interesting analyses that can help better understand the complexity involved in the CDCE.

References

Morin, E. (2005) Introduction à la pensée complexe, Essais, Points, Editions du Seuil, 2005, 158 p.

OMC (2016) Programme de travail sur le commerce électronique, OMC, 25 septembre 1998. <www.wto.org/french/tratop_f/ecom_f/wkprog_f.htm> (accessed 06 October 2016).

Richieri Hanania, L. (2009) Diversité culturelle et droit international du commerce, CERIC, Paris, La Documentation française, 480 p.

Richieri Hanania, L. (ed. & dir.) (2014) Cultural Diversity in International Law: The Effectiveness of the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, London/New York, Routledge, 320 p.

Richieri Hanania, L. (2015a) Le débat commerce-culture à l’ère numérique : quelle application pour la Convention de l’UNESCO sur la diversité des expressions culturelles au sein de l’économie créative ?, 29 avril 2015. <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2600647> (accessed 06 October 2016).

Richieri Hanania, L. (2015b) The UNESCO Convention on the Diversity of Cultural Expressions as a Coordination Framework to promote Regulatory Coherence in the Creative Economy, in The International Journal of Cultural Policy, DOI: 10.1080/10286632.2015.1025068, pp. 1-20.

RIJDEC (2015) Le renouvellement de l’exception culturelle à l’ère du numérique. Rapport presenté à Mons, Belgique, au Colloque international visant à souligner le dixième anniversaire de la Convention sur la protection et la promotion de la diversité des expressions culturelles, le 25 Octobre 2015, 78 pages. <http://www.coalitionfrancaise.org/wp-content/uploads/2015/10/RIJDEC-Le-renouvellement-de-lexception-culturelle-%C3%A0-l%C3%A8re-du-num%C3%A9rique-22-10-15.pdf> (accessed 06 October 2016).

UNESCO (2016) Culture et développement, Culture, UNESCO <http://www.unesco.org/new/fr/culture/themes/culture-and-development/> (accessed 06 October 2016).

United Nations (2015), Transforming our world: the 2030 Agenda for Sustainable Development, Resolution adopted by the General Assembly on 25 September 2015, Seventieth session, A/RES/70/1, 21 October 2015. <http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/70/1&Lang=E> (accessed 06 October 2016).

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