The cultural exemption is a concept that originated in international economic law and more specifically in bilateral and regional free trade agreements. The cultural exemption takes the form of a clause that has the effect of excluding from its scope cultural goods and services that would otherwise be covered by the commitments arising from the agreement in question. The purpose of this clause is to preserve the state's power of intervention with respect to these cultural goods and services, and therefore to protect its cultural sovereignty.
Definition
The terms cultural exemption and cultural exception are often used interchangeably. Although the legal technique is not exactly the same, both have the same objective, namely to remove cultural goods and services from the scope of a trade agreement in order to preserve the power of state intervention.
The Canadian cultural exemption clause is the counterpart of the European cultural exception clause. In substance, the difference between the two clauses is essentially in their scope: while the Canadian cultural exemption excludes cultural industries from the scope of an economic agreement, the European cultural exception is more restrictive, in that it generally covers only audiovisual services.
Cultural exemptions and exceptions fall under the broader category of cultural clauses, which encompass a variety of provisions that refer to culture in order to recognize the specificity of this sector in a free trade context. These clauses share the objective of conveying the idea that culture is not a mere commodity. They are "the best way to make culture and trade coexist within the global legal order ". In some free trade agreements, one or more explicit or implicit references to the 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions, and sometimes to some of its objectives, principles or obligations, are added to cultural clauses.
Unlike cultural reservations or commitments with limitations on the cultural sector, cultural exceptions or exemptions have the advantage of being permanently incorporated into an agreement. As a result, they are generally not subject to subsequent negotiations aimed at progressively increasing the level of liberalization generated by a trade agreement.
In the case of free trade agreements negotiated by Canada, the cultural exemption can vary in scope. In a majority of agreements, it applies to the entire treaty. In other agreements, it is incorporated into certain chapters only, meaning that it excludes only certain cultural goods or services from the scope of the treaty.
Finally, the scope of a cultural exemption or cultural exception can be modulated according to the definitions of the cultural goods, services or industries to which these clauses refer.
The need for separate treatment of cultural products in a context of trade liberalization is analyzed on a case-by-case basis.
Cultural exemption and the multilateral trading system
Fearing the strength of the Hollywood film market after the First World War, some European countries adopted measures to protect their audiovisual and film industries, notably by means of screen quotas. When negotiating what was to become the General Agreement on Tariffs and Trade (GATT 1947), some parties wanted to incorporate a provision allowing for the maintenance of these quotas. The effect of Article IV of GATT 1947 is precisely to permit the maintenance of certain types of "screen quotas".
This clause will be "symptomatic" of the possible restrictive vision of the cultural clauses (of cultural exception), which would apply only to audiovisual services. The general exceptions of the GATT 1947 will be considered insufficient (or too uncertain) to ensure the protection of the cultural sovereignty of states. Indeed, the only general exception in the GATT that concerns the cultural sector is limited to preserving the power of states to adopt and implement measures "imposed for the protection of national treasures of artistic, historic or archaeological value".