Reconciling Cultural Diversity and Free Trade in the Digital Age: a Cultural Analysis of the International Trade in Content Items Claire Wright
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The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals July 2015 Reconciling Cultural Diversity and Free Trade in the Digital Age: A Cultural Analysis of the International Trade in Content Items Claire Wright Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the International Law Commons, and the International Trade Law Commons Recommended Citation Wright, Claire (2008) "Reconciling Cultural Diversity and Free Trade in the Digital Age: A Cultural Analysis of the International Trade in Content Items," Akron Law Review: Vol. 41 : Iss. 2 , Article 3. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol41/iss2/3 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. Wright: Reconciling Cultural Diversity and Free Trade WRIGHT_FINAL 3/23/2009 2:40 PM RECONCILING CULTURAL DIVERSITY AND FREE TRADE IN THE DIGITAL AGE: A CULTURAL ANALYSIS OF THE INTERNATIONAL TRADE IN CONTENT ITEMS Claire Wright* I. Introduction ....................................................................... 401 II. Background Information.................................................... 415 A. Cultural Diversity on the Global Level ....................... 415 B. International Media Conglomerates ............................ 420 C. Global Content Markets .............................................. 428 D. Digital Technology ..................................................... 432 III. Cultural Studies ................................................................. 439 A. Cultural Studies as a Discipline .................................. 439 B. Key Definitions and Concepts in Cultural Studies ..... 440 C. Major Categories of Cultural Theories ....................... 448 D. Major Teachings of Cultural Studies .......................... 466 D. Globalization Theories ................................................ 471 E. Implications of Cultural Studies Regarding the International Trade in Content Items and the Adoption of a More Comprehensive Exemption for Content Items in the WTO .......................................... 477 IV. Conclusion ......................................................................... 483 *Associate Professor, Thomas Jefferson School of Law. This article is the first in a series of three articles by the same author on the subject of the World Trade Organization (WTO) rules on content items, such as movies and music recordings. This first article in the series provides a cultural analysis of the international trade in content items. The second article in the series provides an economic analysis of the international trade in content items, and the third article in the series provides a fairness analysis of the WTO rules on content items. Professor Wright gratefully acknowledges the invaluable assistance of the members of Thomas Jefferson’s junior faculty writers’ group, who have debated various issues and reviewed a number of drafts related to these subjects. She also acknowledges the superior research assistance and dedicated efforts of Rachel Anthony, Amber Bolles, Andrea Carroll, Andrea Carter, Julie Cook, Ashley Hennessee, Erik Laakkonen, Patrick Meyer, and Reena Patel. Finally, she wishes to express her appreciation to Professor Stephen Charnovitz of George Washington University Law School, who reviewed this article and provided very helpful comments. 399 Published by IdeaExchange@UAkron, 2008 1 Akron Law Review, Vol. 41 [2008], Iss. 2, Art. 3 WRIGHT_FINAL 3/23/2009 2:40 PM 400 AKRON LAW REVIEW [41:399 © Bill Bachmann / myLoupe.com Though my heart may be left of centre, I have always known that the only economic system that works is a market economy. This is the only natural economy, the only kind that makes sense, the only one that leads to prosperity, because it is the only one that reflects the nature of life itself. The essence of life is infinitely and mysteriously multiform, and therefore it cannot be contained or planned for, in its fullness and variability, by any central intelligence.1 What is at stake is the cultural identity of all our nations. It is the freedom to create and choose our own images. A society which abandons the means of depicting itself would soon be an enslaved society.2 [N]ow that the genie is out of the bottle, it is very hard, if not impossible to stop it. Computers exchange information. Information is data. Data is the convergence of everything. Barriers mean nothing any more.3 1. MARTIN WOLF, WHY GLOBALIZATION WORKS 40 (2004) (quoting Vaclav Havel, poet, leader of the Solidarity Movement in Poland, and first President of Poland following Poland’s independence from the Soviet Union). 2. Simona Fuma Shapiro, The Culture Thief, THE J. OF THE NEW RULES PROJECT (2000), available at http://www.newrules.org/journal/nrfall00culture.html#sidebar (quoting Francois Mitterand, Former President of France in a 1993 speech regarding France’s proposal to include a more comprehensive cultural exemption to the World Trade Organization (WTO) trade rules, during the Uruguay Round of trade negotiations culminating in the establishment of the WTO). 3. Partha Dasgupta, Digitalization, available at http://cactus.eas.asu.edu/PARTHA/Columns/12-24-digital.htm (last visited Sept. 2, 2007) (discussing how “digitalization” is not a word and how “digitization” has changed everything in our world). Professor Dasgupta is a faculty member of the Computer Science and Engineering Department at Arizona State University at Tempe, Arizona. Id. http://ideaexchange.uakron.edu/akronlawreview/vol41/iss2/3 2 Wright: Reconciling Cultural Diversity and Free Trade WRIGHT_FINAL 3/23/2009 2:40 PM 2008] RECONCILING CULTURAL DIVERSITY AND FREE TRADE 401 I. INTRODUCTION Imagine the following scenario:4 On a plane leaving from JFK airport to Nairobi, Kenya, two individuals, Mari, a native from the Maasai tribe in Kenya, and Paul, an executive for Starbucks Coffee Company in Seattle, are sitting next to each other. Mari’s given name is Mawusi, and she is wearing her traditional Maasai dress made out of bright red cloth.5 Mari is now an Assistant Health Minister of Kenya, and she uses the name “Mari” because that is easier for her Western counterparts around the world to pronounce. She is a medical doctor and she attended medical school in the U.K. While Mari lives and works in downtown Nairobi, most of the rest of her family still lives with the Maasai tribe on the Maasai Mara Wildlife Reserve. Mari is returning to Kenya from a meeting that she just attended at the Center for Disease Control in Atlanta, but she is leaving from New York City, because she wanted to do some shopping and see a Broadway show there. Paul is traveling to Kenya to resolve a sticky situation for Starbucks. Paul comments to Mari as she takes her seat that he likes her native dress, and she replies that she often wears it on her return flights to Kenya. She explains that it makes her feel more of an affinity with her native country and she otherwise doesn’t get a chance to wear it very often anymore. In addition, she explains, counterfeit “Kenyan-style” fabrics from China are being imported into Kenya en masse, so she is also wearing her dress as a sign of support for Kenyan producers of Kenyan garments. Mari then politely asks Paul what kind of problem he needs to resolve for Starbucks in Kenya. He replies that some people in Kenya are claiming that every single variety of coffee sold in the Starbucks shops in Kenya should be of Kenyan origin. Some people are even starting to stage protests outside of the Starbucks stores, he notes. Mari replies to Paul that she can understand the protesters’ concerns. After all, she informs him, coffee is Kenya’s largest export crop and Kenya itself produces a wide variety of good coffees. She asks him why Starbucks doesn’t want to serve only Kenyan coffee blends in Kenya. 4. This is a hypothetical scenario. However, it is not unlike scenes that occur many times every day around the world between the nationals of different countries. 5. The bright red color of the Maasai tribe’s garments symbolizes cattle meat and blood, two of the Maasai’s dietary staples, as well as the red clay earth of Kenya. See, e.g., SIR ALFRED CLAUD HOLLIS, THE MAASAI: THEIR LANGUAGE AND FOLKLORE 37 (1905); African Medical & Research Foundation, Trachoma Monitoring, Oct. 16, 2007, at 2, available at http://www.amref.org/index.asp?PageID=287. Published by IdeaExchange@UAkron, 2008 3 Akron Law Review, Vol. 41 [2008], Iss. 2, Art. 3 WRIGHT_FINAL 3/23/2009 2:40 PM 402 AKRON LAW REVIEW [41:399 Paul then explains that the situation is actually pretty complicated. He states that the gist of the problem is that Starbucks’ customers in Kenya actually like the variety of coffees from around the world that Starbucks serves there. The people who are staging the protests in Kenya are not customers of Starbucks. Paul says that there are two main points that he has to keep in mind in resolving the problem for Starbucks. First, he said, Starbucks obviously makes more money by offering the same coffee blends in each of its locations around