Washington University Global Studies Law Review Volume 3 Issue 3 January 2004 The Life, Death, and Rebirth of the “Cultural Exception” in the Multilateral Trading System: An Evolutionary Analysis of Cultural Protection and Intervention in the Face of American Pop Culture's Hegemony Frederick Scott Galt Washington University School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_globalstudies Part of the International Trade Law Commons Recommended Citation Frederick Scott Galt, The Life, Death, and Rebirth of the “Cultural Exception” in the Multilateral Trading System: An Evolutionary Analysis of Cultural Protection and Intervention in the Face of American Pop Culture's Hegemony, 3 WASH. U. GLOBAL STUD. L. REV. 909 (2004), https://openscholarship.wustl.edu/law_globalstudies/vol3/iss3/7 This Note is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Global Studies Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. THE LIFE, DEATH, AND REBIRTH OF THE “CULTURAL EXCEPTION” IN THE MULTILATERAL TRADING SYSTEM: AN EVOLUTIONARY ANALYSIS OF CULTURAL PROTECTION AND INTERVENTION IN THE FACE OF AMERICAN POP CULTURE’S HEGEMONY INTRODUCTION International relations-globalization literature is replete with bleak forecasts regarding the fate of states’ cultural identity in the context of the hegemonic ideology of the neoliberal trading system.1 Self-interest, domestic pressure, bias, ignorance, and uncertainty have all compelled states to respond to extant global trade climates by creating unique public policy instruments to justify deviations from the standard GATT/WTO legal framework2 and to withstand complete liberalization3 in certain sectors of the global economy. For example, negotiations in the audiovisual sector have historically been plagued by problems of ill- definition, misperception, and intransigence.4 These problems are co- 1. Neoliberalism is a political-economic school of thought that encourages deregulation, privatization, and free trade. Often associated with the free activity of capitalist economies unconstrained by the government or civil society, neoliberalism is built upon neo-classical price theory. For an unflattering account of neoliberalism, see Susan George, A Short History of Neoliberalism, at http://www.globalpolicy.org/globaliz/econ/histneol.htm (last visited Apr. 13, 2004). 2. The overarching goal of the GATT/WTO legal framework is to liberalize trade in pursuit of greater global welfare. This is to be achieved by strict adherence to the norm of nondiscrimination through such principles as “most-favored-nation treatment,” and “national treatment.” The principle of most-favored-nation treatment, found in article I of the initial General Agreement on Tariffs and Trade (GATT), requires World Trade Organization (WTO) member states to treat the goods and services of all other member states similarly. The principle of “National Treatment” in article III of the GATT requires WTO member states to treat national goods and services and foreign goods and services in the state’s domestic market alike. The GATT provided the basic legal framework of the multilateral trading system from Jan. 1, 1948, until Jan. 1, 1995, when the WTO entered into force and the 1947 GATT text was updated to become “GATT 1994.” See infra note 13. 3. Complete liberalization reflects a world in which the global markets reign uninhibited by tariffs, quotas, and informal trade barriers. In theory, consumer sovereignty is maximized by access to the best products at the best price. See ADAM SMITH, THE WEALTH OF NATIONS 342, 346, 348–49, 424, 444–45 (1776). 4. Victoria de Grazia, Mass Culture and Sovereignty: The American Challenge to European Cinemas, 1920–1960, 61 J. MOD. HIST. 53–87 (1989); DAVID ELLWOOD & ROB KROES, HOLLYWOOD IN EUROPE, EXPERIENCES OF CULTURAL HEGEMONY (1994); RICHARD KUISEL, SEDUCING THE FRENCH: THE DILEMMA OF AMERICANIZATION (1993); RICHARD PELLS, NOT LIKE US: HOW EUROPEANS HAVE LOVED, HATED, AND TRANSFORMED AMERICAN CULTURE SINCE WORLD WAR II 909 Washington University Open Scholarship p909 Galt.doc 7/21/2004 910 WASHINGTON UNIVERSITY GLOBAL STUDIES LAW REVIEW [VOL. 3:909 determined by the dominance of American Popular Culture5 and the complementary evolution of the “cultural exception” doctrine as a policy response designed to neutralize this dominance. The cultural exception doctrine resulted in a long-standing international public relations war alternatively boxed in the rhetoric of “Americanization”6 and “anti- Americanism”.7 While its halcyon days were as recent as the last decade, the exigencies of the “new economy”8 and its accompanying technology, coupled with globalization’s hallmarks of consolidation, integration, and harmonization,9 have led one interested party to boldly proclaim “the cultural exception is dead.”10 This Note proceeds by examining the confluence of multilateral trade policy, cultural identity, and the vitriol of the “Americanization” and “anti- Americanism” rhetoric through an assessment of the genesis, evolution, and current vitality of the “cultural exception” doctrine as applied to the audiovisual sector. Part I defines the cultural exception doctrine, pinpoints its origins and modern sources in the international trade architecture, and introduces the divide that exists between believers and non-believers. Part II evaluates the legal, economic, and social justifications traditionally offered in its support, emphasizing the problems of ill-definition and misperception. Part III examines several key developments that have impacted the audiovisual sector since the conclusion of the Uruguay Round of Multilateral Trade Negotiations, with a determinative outlook as (1997). 5 . See World Trade Organization, Council for Trade in Services, Audiovisual Services, S/C/W/40(98-2437), June 15, 1998; OECD, Content as a New Growth Industry, DSTI/ICCP/ IE(96)6/FINAL, May 22, 1998; OECD, Policy and Regulatory Issues for Network-Based Content Services, DSTI/ICCP/IE(96)9/REV1 (and CORR1), Aug. 4, 1997; European Commission, Panorama of EU Industry 1997; European Audiovisual Observatory, Statistical Yearbook 1997, Strasbourg. 6. Victoria de Grazia, Americanization and Europeanization, EUR. STUD. NEWS. (Council for European Studies), June 2001; Elizabeth Franck, Americanization of Messier: Vivendi Boss Loses Billions, NEW YORK OBSERVER, Mar. 11, 2002, at A1. 7. See L’ANTIAMÉRICANISME=ANTI-AMERICAN AT HOME AND ABROAD: ACTES DU COLLOQUE DES 26 ET 27 MARS 1999 (Sylvie Mathé, ed., 2000); Darrin McMahon, Echoes of a Recent Past: Contemporary French Anti-Americanism in Historical and Cultural Perspective, COLUM. INT’L AFF. ONLINE, available at http://www.ciaonet.org/wps/mcd01/ (last visited Apr. 13, 2004). 8. For a discussion of the relationship between culture and the “new economy,” see HARVEY B. FEIGENBAUM, GLOBALIZATION AND CULTURAL DIPLOMACY 32 (2001). 9. Joseph M. Grieco & G. John Ikenberry, Economic Globalization and its Discontents, available at http://www.duke.edu/~pfeaver/grieco_reading.chapter6.htm (last visited Apr. 9, 2004) (defining globalization as “the fastest growing integration since World War II of the national economies of most of the advanced-industrialized countries of the world, and an increasing number of developing nations, to the degree that we may be witnessing the emergence and operation of a single worldwide economy . Globalization is, however, not only about economic integration . it also includes an increase in cross-border political, social, cultural and technological exchanges”). 10. See Franck, supra note 6; see also Meara Cavanaugh, Messier: Threat to French Culture?, CNN.COM (Apr. 17, 2002), http://www.cnn.com/2002/BUSINESS/04/17/messier/index.html (on file with the Washington University Global Studies Law Review). https://openscholarship.wustl.edu/law_globalstudies/vol3/iss3/7 p909 Galt.doc 7/21/2004 2004] LIFE, DEATH, AND REBIRTH OF THE “CULTURAL EXCEPTION” 911 to whether the doctrine is alive and well or on its last leg. The Note concludes with a speculative exploration of the doctrine’s future. I. DEFINITION, POSSIBLE ORIGINS, AND MODERN SOURCES The idea of state protection of cultural identity has existed for many years, arguably reaching as far back as the origins of state sovereignty.11 However, the modern doctrine of the cultural exception12 did not begin to take shape until the establishment of the multilateral trading system.13 Yet, the problems of bias, political self-interest, misperception, and intransigence that have historically plagued trade in the audiovisual sector are the very same problems that make selecting a working definition of the doctrine a difficult task. Once all the showmanship and spurious theories are teased out of the process, we are left with a raw marrow that recognizes the sensitive nature of the audiovisual sector and the desire to exempt this sector from standard GATT/WTO legal obligations.14 Though not specifically articulated as such, advocates of the cultural exception would suggest that one definition of the doctrine in the multilateral trading system can be found in article IV, part II of the 1947 GATT.15 The “Special Provisions Relating to Cinematograph Films”16 11. Danielle S. Petito, Sovereignty and Globalization: Fallacies, Truth, and Perception, 17 N.Y.L. SCH. J. HUM. RTS. 1139 (2001). 12. This is also