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ABSTRACT
Certain countries stand out as having distinctive approaches to trade and culture. Canada occupies a key position in this pantheon of distinctive approaches. Since the 1980s, Canada has pursued a 'cultural exemption’ in its various trade agreements. The perception is that it has largely maintained this exemption, however I will show in this article that each iteration of the exemption differs from the others in subtle but noteworthy ways. These differences stem in large part from the nature of the particular trade agreement negotiations and the identity of the specific trading partner(s). Ultimately, the aim of this contribution is to show that Canada’s cultural exemption strategy has had to evolve alongside key trends in trade, notably the proliferation of free trade agreements.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. WTO members must notify the organization should they enter into a free trade agreement.
4. Notwithstanding any other provision of this Agreement, as between Canada and the United States, any measure adopted or maintained with respect to cultural industries, except as specifically provided in Article 302 (Market Access – Tariff Elimination), and any measure of equivalent commercial effect taken in response, shall be governed under this Agreement exclusively in accordance with the provisions of the Canada – United States Free Trade Agreement.
5. CETA references can be found here: http://www.international.gc.ca/trade-commerce/trade-agreements-accords-commerciaux/agr-acc/ceta-aecg/text-texte/PRE.aspx?lang=eng.
6. Article 7.7 – Exclusion of subsidies and government support for audio visual services and cultural industries: ‘Nothing in this Agreement applies to subsidies or government support with respect to audio-visual services for the European Union and to cultural industries for Canada.’
7. Section D – Investment protection ARTICLE 8.9 Investment and regulatory measures: ‘1. For the purpose of this Chapter, the Parties reaffirm their right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, safety, the environment or public morals, social or consumer protection or the promotion and protection of cultural diversity.’
8. Article 9.2 Scope “2. This Chapter does not apply to a measure affecting: … (b) for the European Union, audio-visual services; (c) for Canada, cultural industries;”.
9. Article 12.2 Scope “2. This Chapter does not apply to licensing requirements, licensing procedures, qualification requirements, or qualification procedures: a. pursuant to an existing non-conforming measure maintained by a Party as set out in its Schedule to Annex I; or b. relating to one of the following sectors or activities: for Canada, cultural industries and, as set out in its Schedule to Annex II, social services, aboriginal affairs, minority affairs, gambling and betting services, and the collection, purification, and distribution of water; and for the EU Party, audio-visual services and, as set out in its Schedule to Annex II, health, education, and social services, gambling and betting services, and the collection, purification, and distribution of water.”
10. Annex 19.7 General Notes ‘1. This chapter does not cover procurement: i. by Québec entities of works of art from local artists or to procurement by any municipality, academic institution or school board of other provinces and territories with respect to cultural industries. For the purpose of this paragraph, works of art includes specific artistic works to be integrated into a public building or a site;’.
11. ‘4. An investment subject to review under the Investment Canada Act may not be implemented unless the Minister responsible for the Investment Canada Act advises the applicant that the investment is likely to be of net benefit to Canada. This determination is made in accordance with six factors described in the Act, summarised as follows: (e) the compatibility of the investment with national industrial, economic and cultural policies, taking into consideration industrial, economic and cultural policy objectives enunciated by the government or legislature of any province likely to be significantly affected by the investment;’.
12. “7. The review thresholds set out in paragraphs 1 and 3 do not apply to an acquisition of a cultural business. 8. In addition, the specific acquisition or establishment of a new business in designated types of business activities relating to Canada’s cultural heritage or national identity, which are normally notifiable, may be subject to review if the Governor-in-Council authorises a review in the public interest. 9. An indirect ‘acquisition of control’ of a Canadian business by an investor of a Party in a sector other than a cultural business is not reviewable.”
13. For example, Article 2205 in Canada-Peru says, ‘nothing in this FTA, shall be construed to apply to measures adopted or maintained by either Party with respect to cultural industries except as specifically provided in Article 203 (National Treatment and Market Access for Goods – Tariff Elimination).’
14. ‘Recognize that States have the ability to preserve, develop and implement their cultural policies for the purpose of strengthening cultural diversity;’.
15. ‘Promote cultural cooperation and recognise that the Parties have the right to preserve, develop, and implement their cultural policies and to support their cultural industries for the purpose of strengthening the diversity of cultural expressions;’.
16. Article 1.6: Cultural Cooperation “1. The Parties agree to promote cultural cooperation in order to increase mutual understanding and benefit from each other’s competitive strengths in the development of content for the global market. In this regard, the Parties endeavour to promote cultural exchanges and carry out joint initiatives in various cultural spheres, such as audiovisual coproductions. 2. Recognising that audiovisual coproduction agreements can significantly contribute to the development of the audiovisual industry and to an intensification of cultural and economic exchange, the Parties agree to consider the negotiation of an audiovisual coproduction agreement. Such a future audiovisual coproduction agreement shall form an integral part of this Agreement.”
17. The EU negotiates as a bloc, representing its 28 members.
18. Honduras, Jordan, Panama, Peru, Korea and Ukraine all signed onto the Convention before concluding trade negotiations with Canada.
Additional information
Notes on contributors
Patricia M. Goff
Patricia M. Goff is an Associate Professor in the Department of Political Science at Wilfrid Laurier University and a Senior Fellow at the Centre for International Governance Innovation, both in Waterloo, Ontario, Canada. Her research explores the politics and governance challenges of trade policy.
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