The onrushing digital tide threatens to wash it away; looming talks on a new trade accord between the EU and the US could blow holes in it. But the determination in Paris to defend lâexception culturelle is unyielding.Hugh Carney, The Financial Times (2013)
In 2013, the French government vowed to continue ââŠto defend vigorously in bilateral and multilateral trade negotiations, the special treatment extended to cultural products â (MinistĂšre de la Culture et de la Communication 2013: 14) 1 âa derogation that has become known as the cultural exception . Since the earliest days of cinema, France has sought to protect its audiovisual industry from being overwhelmed by US importsâwhat it terms âa cultural dumping on an unprecedented scaleâ (in Burin de Roziers 1998: 55) 2 âemploying a combination of quotas and subsidies at home, coupled with intensive lobbying on the international stage to retain the right to use those support measures. A healthy film industry is vital to maintaining the countryâs cultural diversity and national identity , government and trade negotiators have asserted regularly over the past 100 years. And they continue to do so, despite the fact that the media landscape is undergoing a dramatic shift. Digital technology has changed how films are delivered, introducing new players to the market, such as Apple, Amazon and Netflix , giving consumers new choices about what they watch and when, and calling into question Franceâs ability to maintain its defence of its film industry.
The term âcultural exception â was coined in the early 1990s during the Uruguay round of negotiations to update the General Agreement on Tariffs and Trade (GATT) and to create a sister frameworkâthe General Agreement on Trade in Services (GATS)âand a new body governing the implementation of both treaties, the World Trade Organization (WTO). Championed by the French, the cultural exception is the notion that cultural products are different from other traded goods and services and, thus, they should be exempted from the rules that govern international commerce.
Proponents of the cultural exception argue that it is a collective term for a series of provisions within both GATT and GATS (together known as GAT/S) that allow nations to maintain preferential programmes in support of their cultural industries (Galt 2004: 912). The first of these is Article IV of the original GATT from 1947. It exempts cinema from what is known as the national treatment obligations, that is the principle that imported products should be treated in the same way as local ones. The exemption allows countries to maintain or introduce screen quotas , which were seen as the counterpart to tariffs in other economic sectors (Bernier 2003: 3). Television and radio are covered by GATS , which extended international trade agreements to services. In signing up to the agreement, countries were required to state the service sectors and sub-sectors in which they were willing to make commitments to liberalise market access in line with Articles I to XV of the agreement. They were also required to set out the scope of those commitments and whether there are any limitations to access, such as restrictions on the extent to which a local company might be owned by a foreign organisation (Burri-Nenova 2008: 46; Cocq and Messerlin 2003: 5â6). 3 France, as part of the EU , filed a specific exemption to cover the provisions of the Television without Frontiers Directive , which sets out the content quotas to be applied to television services across the continent.
Advocates of full-scale trade liberalisationâled principally by the USAâargue that the cultural exception does not exist. They point out that there is no formal legal definition of the term in either GATT or GATS , nor any single clause or section that explicitly states that cultural products are excluded from the scope of trade regulation, nor any accepted treaty definition of the measures that a country could use to protect and promote its cultural industries. In fact, a note produced by the WTO Secretariat explicitly states there are no âspecific exceptions in relation to culture or cultural policyâ (WTO 2010). The treaty mechanisms on which France relies, such as listing the Television without Frontiers Directive under the exemptions to the most-favoured nation provisions, are general mechanisms allowing any country to refuse to make liberalisation commitments whatever the sector; they do not specifically relate to cultural products, and indeed, the USA employs the same measures to protect its shipping industry. The cultural exception , opponents believe, is largely a foil that helps to protect French film and television producers from commercial reality and allows them to make more money at the expense of the Americans.
Complicating this legal debate is the fact that the term âcultural exceptionâ has acquired symbolic meaning. Over the past 20 years, it has become virtually synonymous with French cultural policy, largely because the French have been such vociferous campaigners for extending special treatment to the cultural industries. Marie-Sophie LequerrĂ© , former ChargĂ©e de mission VĂ D at the Centre national du cinĂ©ma et de lâimage animĂ©e (CNC), has described the cultural exception as âsomething purely Frenchâ. 4 She felt the concept had become increasingly associated with French culture and heritage, because the French were the only ones to really defend it in Europe.
This perception of the cultural exception as a French policy has come about inspite of the fact that the phrase was deplored by former French President François Mitterrand when it was first coined in the early 1990s. He felt that it had overly economic connotations:
It is not a good term, by the way, because after all, it is not an exception; because if it were an exception, that would imply that it [culture] is a commodity, just one that is not subject to the same fate as all the others. (quoted in Courtois 2013: 22) 5
However, in a 2011 study on the possible future direction for cultural policy, the French MinistĂšre de la Culture et de la Communication described one approach as Lâexception continuĂ©e. This would be founded on continued state intervention, noting:
In particular, the logic which gave rise to a âFrench cultural exceptionâ, understood in terms of a specific cultural model and approach to cultural policy, forms an objective that is certainly difficult to achieve, but is fundamental for the future. (MinistĂšre de la Culture et de la Communication 2011: 49) 6
This was reinforced by the ministryâs decision to christen the 2013 review of French cultural policy in the digital age led by former head of Canal+, Pierre Lescure , as round II of the cultural exception (lâActe II de lâexception culturelle). His remit was to review the quotas and subsidies in place within France and to assess the policies needed to tackle internet piracy and boost market development. However, the use of the term âexception culturelleâ suggests that even in official circles the exception has become a byword for cultural policy as implemented in France; it does not simply denote an ongoing campaign to exclude cultural industries from the scope of international trade negotiations, which has the result of allowing France and other nations to retain programmes aimed at cultural promotion.
The debate has also been dogged by a similarly fluid use of the term âcultural diversityâ. Regourd comments that in the aftermath of the Uruguay round of trade negotiations, talk of a âcultural exception â was surreptitiously replaced by discussion of âcultural diversityââa process referred to as a glissement sĂ©mantique (shift in meaning).
Cultural diversity is regarded as the âpendant positifâ or more acceptable companion of the cultural exception. Bernard Miyet, a former diplomat and lead negotiator at the time of the Uruguay round , contends that Leon Brittan had coined the notion of cultural specificity during the talks as a way to advance discussions. The term âcultural exceptionâ was perceived as too protectionist and, therefore, antagonistic towards countries with a strong liberalising agenda including the USA. âCultural diversityâ was a more conciliatory term. Former culture minister Catherine Tasca also believed that in the wake of the Uruguay round , the notion of exception became âunsatisfactoryâ and âmisunderstood internationallyâ (quoted in Looseley 2003: 232); talk of cultural diversity was considered more acceptable, helping to rally other nations to the cause, including Canada and several developing economies (Regourd 2002: 97â102). Either way, the change in rhetoric was significant enough that in 2001 Jean-Marie Messier , another former Canal+ boss, declared the cultural exception to be dead (LibĂ©ration, 18 December 2001).
But for many cultural diversity is not a replacement for the cultural exception . They see the terms as separate, but closely related, concepts that each have an important place in the trade and culture debate. Tasca âs successor in the culture ministry, Catherine Trautmann , explained in a briefing document released to coincide with the launch of the Millennium round of world trade negotiations that:
The notion of cultural diversity does not replace the cultural exception . There has not been a shift in meaning to conceal any shady reality, nor any abandonment of the term. Simply, these two terms are not on the same level. âCultural diversityâ is the ultimate goal of the negotiations. The âcultural exceptionâ is the means, which in my eyes is non-negotiable, to achieve the objective of cultural diversity. (quoted in Regourd 2002: 97â102) 7
The indiscriminate use of language results from the lack of an agreed definition for both terms and, according to Tardif, any consideration of âwhat cultural diversity is and what puts it in jeopardyâ (Tardif 2008: 199). 8 It has allowed stakeholders on all sides of the debate to co-opt the term in the way that best supports their position in broader discussions about the need for measures to protect cultural production in the face of globalisation. A more sophisticated definition of cultural diversity is needed to deconstruct these positions and advance the debate on trade and culture.
Coupled with this indiscriminate use of the terms âcultural exception â and âcultural diversityâ is a French tendency to assign greater symbolic meaning to objects than the Americans are...