The trade and culture debate in the digital age : towards an adaptive regulatory approach from fragmentation to coherence

Abstract

The trade and culture debate has been a tension with a long history and yet with indefinite result. The essence of the debate is the dual nature of cultural products (goods/services), which embodies the commercial value and cultural value simultaneously and seems not easy to synthesize both together.

Traditionally, the dominant regulatory approach towards the trade and culture debate 1.0 is the particular or general exceptions under the WTO regulatory framework. However, it has been widely argued that the existing WTO regulatory framework cannot provide sufficient flexibilities to accommodate cultural policy measures. The over politicized bifurcation of regulatory regime of trade and culture renders the possible suggestions mere academic projects, which lack of political incentives and are highly unlikely to implement.

Gradually, the second dominant regulatory approach for the trade and culture debate 1.0 relies on the UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expression (UNESCO CDCE). This convention marks that the dominant regulatory approach has shifted gradually from negative exceptions (exclusive inclusion) to more positive integration clauses (inclusive exclusion). A critical analysis on the context and substantive norms of the UNESCO CDCE reveals that the legal value of the convention under international law and its role in the trade and culture debate are negligible. The recent development of international trade law, the dispute of China-Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products, has questioned the overall suitability and accuracy of the well-established convention.

Except for the old problems pertaining to the trade and culture debate remain unresolved, some new emerging domains in the digital age, including digital technology and intellectual property rights, have posted crucial challenges as well, which however has not been paid due attention. Therefore, along with the update of the debate, the overall complexity has increased in the changed regulatory environment, rendering even the acceptance of the dual nature of the cultural industries obsolete. These new trends invite the careful reconsideration of the role of law, the dominant legal responses and regulatory approaches.

It has been recognized that the cultural industries have transformed to the creative industries, marking that the dual natured cultural products have shifted to multifaceted natured creative products. This illustrates that creative industries tend to more properly reflect the status quo of the current economy, and the concept of creative economy could be employed as the concept to design a new regulatory approach for the debate in the digital age. Building upon this, the global governance debate seems to be a holistic approach for the trade and culture debate 2.0. For the WTO regulatory framework, a two-steps approach could be considered. The first step is to formulae the ‘creative economy’ as a legal concept, followed by the second step of introducing the concept into the WTO regulatory framework. It is suggested that such approach could be a more adaptive and coherent regulatory approach for the trade and culture debate in the digital age.