PROCEDURE

At its meeting of 8 December 1997, the Committee on Culture, Youth, Education and the Media appointed Mrs Tongue draftswoman.

It considered the draft opinion at its meetings of 19 January 1998 and 21 January 1998.

At the latter meeting it adopted the following conclusions unanimously.

The following took part in the vote: Pex, chairman; Hawlicek and Ahlqvist, vice-chairwomen; Tongue, drafstwoman; and Banotti, Daskalaki (for Poisson), Elchlepp (for Groner), Evans, Heinisch, Hoppenstedt (for Pack), Kerr, Kuhne, Paasilinna (for Morgan), Perry, Sanz-Fernandez, Vaz da Silva and Whitehead (for Junker).

INTRODUCTION

The current negotiations on the OECD's Multilateral Agreement on Investment (MAI) are using a very wide definition of investment. As a result, intellectual property rights and audiovisual services will be included, de facto, within the scope of the Agreement.

This is a matter of grave concern, given that the European Union has a legal obligation to "...take cultural aspects into account in its action under the provisions of this Treaty, in particular in order to respect and to promote the diversity of cultures." [1]

This treaty obligation is implemented through specific legislation to promote European cultures. These include the KALEIDOSCOPE, RAPHAEL and ARIANE programmes. Programmes and legislation in the audiovisual sector strengthen the EU audiovisual industry and promote cultural diversity. Specifically, the MEDIA II programme and the EURIMAGES initiative of the Council of Europe are designed to promote European audiovisual production, while the Directive on 'Television without Frontiers' [2] aims to establish a common programme production and distribution market. Furthermore, Protocol on Public Service Broadcasting annexed to the Treaty of Amsterdam states that "Considering that the system of public broadcasting in the Member States is directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism.... the provisions of the Treaty... shall be without prejudice to the competence of the Member State to provide for the funding of public service broadcasting". [3]

Legislation also exists at national level to support domestically produced television programming and cinema. Furthermore, there are bilateral agreements between most of the EU Member States and third countries, such as the ACP countries, with beneficial effects for the industry as a whole, and for cultural diversity.

Implications of the application of the MAI

It is currently proposed that the provisions of the MAI, such as the 'national treatment' clause and the 'most favoured nation' clause, be applied in full to the audiovisual sector. This would mean that third countries, with their own flourishing audiovisual industries, would have access to EU and Member State systems of aid, like MEDIA II. It would negate the original aims of these programmes, and would mean that they would no longer be viable.

Without a specific exemption for the audiovisual sector, covering present and future provision, our support systems for the audiovisual industry will not be able to fulfil their ultimate purpose of increasing cultural diversity, nor the more immediate aim of strengthening our audiovisual industry, thereby promoting its competitiveness.

This would also mean that the already limited presence of European productions on the European market would be further reduced, with grave effects on cultural pluralism and the safeguarding of our identity and languages, particularly for the smaller countries of Europe.

There is no level playing field between the EU and the USA in the audiovisual sector. US companies have a huge structural advantage for economic reasons: large programme stocks, often with high production values, can be sold into European markets cheaply on the basis that production costs have already been recovered in the home USA market.

This means that European broadcasters can buy US programming for 10% of the cost of an original European production. The result is a constantly increasing deficit in the balance of trade in audiovisual programmes between the EU and the US. In 1995 the deficit reached a value of $6.3 billion, and it is still rising. Television is a medium, more than any other that expresses the hopes and ideals of large groups of people, which articulates our national values and ideals, and which defines identity in its many forms. It is a non-negotiable part of the infrastructure of our democracy.

A specific exemption of the audiovisual sector from the MAI is necessary to ensure that Europe's stories and voices are reflected on our screens, and that we are the creators of our own culture.

The precedent set by GATS

The exemption of the audiovisual sector during the last round of GATS negotiations set a clear precedent that exemption on cultural grounds is both possible and desirable. The Television Without Frontiers directive, the MEDIA Programme and the EURIMAGES fund, as well as co-production agreements with non-EU countries, are all exempt from GATS. What is more, in the first basic agreement on telecommunications services adopted in the framework of GATS, liberalisation is explicitly reserved for infrastructure; broadcasting is considered to be a separate matter requiring separate legislation. [4]

Intellectual Property Rights

Intellectual property rights are also currently included in the MAI negotiations. Their inclusion poses problems of coherence and relation with the agreements and conventions already existing in this area - the Conventions of Berne and Rome, theWorld Intellectual Property Organisation (WIPO) negotiations concluded in December 1996 but not yet ratified, and the World Trade Organisation's Treaty on Intellectual Property (TRIPs), as well as the EU's own work in this area. [5]

All these agreements, whilst accepting the principle of 'national treatment' and 'most favoured nation', contain important exceptions to these principles. The MAI, as it stands, does not. Assimilating questions of intellectual property into a general treaty regulating investment involves taking an extremely minimalist approach to the whole idea of intellectual property. This is why the MAI must not cover the issue. It should accept the international agreements already in place, which are the products of complex technical negotiations over a long period of time.

CONCLUSIONS

In the light of the above, the Committee on Culture, Youth, Education and the Media calls on the Committee on External Economic Relations, as the committee responsible, to incorporate the following conclusions into its report:

1. Stresses that nothing should endanger the freedom of the European Union or its member states to take any initiative to promote and support cultural and linguistic diversity, now or in the future.

2. Asserts that unconditional liberalisation of the cultural industries would frustrate the legitimate objectives of cultural policy. The basic principles of the MAI agreement, that is, the 'national treatment' principle and the 'most favoured nation' principle, if applied to the cultural sector, would directly undermine the functioning of the EU's various initiatives in the cultural and audiovisual sector, as listed in the explanatory statement. These initiatives are essential for the EU to continue to meet its legal obligations under Article 128 of the Treaty. Adherence to the MAI agreement in the cultural sector would, therefore, prevent the proper implementation of European Union legislation.

   The support mechanisms existing in the EU and individual Member States are specifically designed to enhance European cultural pluralism and diversity. It is clearly contradictory to open up such mechanisms automatically to third countries.

3. Notes that some delegations are arguing for a 'Cultural Exception Clause'. The proposed clause could read as follows: "Nothing in this agreement shall be construed to prevent any Contracting Party to take any measure to regulate investment of foreign companies and the conditions of activity of these companies, in the framework of policies designed to preserve and promote cultural and linguistic diversity." [6]

4. Believes that at the very least the MAI should contain an exemption for the audiovisual sector. This should be implemented in the form of a reservation in respect of the national treatment, most favoured nation and performance-related obligations with regard to present and future policies, irrespective of the technologies used.

5. States that the multilateral agreements already in place to regulate intellectual property are legally binding international agreements. They make further multilateral agreements on these issues, under the auspices of the MAI, unnecessary. These agreements include those of the EU itself, the World Intellectual Property Organisation (WIPO), and the World Trade Organisation's Treaty on Intellectual Property (TRIPs).

   Therefore, the Committee insists on the exclusion of intellectual property from the scope of the implementation of the MAI agreement, in order to retain the tradition of authorial rights and moral rights that exists in many European countries. Any inclusion of strictly economic definitions of intellectual property, which exclude references to authorial right or moral right, would be contrary to the multilateral agreements already operating in this field.

   5bis) Regrets the pressure being brought to bear by certain OECD member states on applicant members, not to apply the EU audiovisual "acuis communautaire". Such pressure is completely unethical and against EU enlargement procedures.

6. Believes that a process of open dialogue and consultation on these matters should form an integral part of the MAI process, and that there should be an explicit commitment to transparency in the negotiations. The opinion of the European Parliament must inform the negotiating position of the European Commission, on behalf of the European Union; Looks forward to giving a second opinion to the REX Committee once the text of the final agreement has been received by the European Parliament for its assent.

NOTES
1. European Union Consolidated Treaties, 1997, Article 151
2. Directive 89/552 EEC and revised Directive 97/36/EC
3. Treaty of Amsterdam, 1997, Protocol on the system of public broadcasting in the Member States annexed to the Treaty establishing the European Community
4. See European Parliament Castellina Report on the results of the WTO Negotiations on basic telecommunications services (PE 222.646)
5. European Commission 1995: Green Paper on Copyright and Related Rights in the Information Society (COM(95)382), followed by Proposal for Directive.
6. Source: OECD Document - Multilateral Agreement on Investment: Consolidated Text and Commentary DAFFE/MAI/NM(97)2 page 168