The EU and Canada signed the Comprehensive Economic and Trade Agreement (CETA) on 30th of October of 2016. It will only enter into force permanently after ratification by 38 national and regional parliaments. Within this context, we review the implications of CETA for culture.
CETA goes beyond traditional approaches to trade liberalization. It broadens the scope to cover non-tariff barriers to trade, such as standards, procedures and regulations. It also includes areas such as public procurement and intellectual property.
Canada and the EU are both signatories of the UNESCO Convention of Protection and Promotion of the Diversity of Cultural Expressions, which had Canada and France as main promoters. This is explicitly recognised in the preamble of the Agreement. More concretely, it states the signatories’ ‘right to preserve, develop and implement their cultural policies, and to support their cultural industries for the purpose of strengthening the diversity of cultural expressions and preserving their cultural identity (including the use of regulatory measures and financial support)’. Accordingly, future legal interpretations of CETA should be done in light of the spirit of the UNESCO declaration. The World Trade Organisation (WTO) jurisprudence shows that consideration is given to preambles. However, they are non-binding and hence, the preamble is not a substitute for a full exclusion of culture.
Culture is treated in CETA asymmetrically. Canada has a full exception for cultural industries, while the EU limits its exemption to audiovisual services. This asymmetry is the result of tensions between those privileging a general exception for culture, mainly French and Canadian actors, and the EU’s preference for a targeted approach. Ultimately, the later prevailed. A “negative list” approach includes all sectors except those explicitly mentioned. CETA grants exceptions in five different chapters; subsidies, investment, cross border trade in services, domestic regulation and government procurement (for a detailed analysis see table below).
The Chapter on intellectual property has been considerably weakened during negotiations. Earlier drafts included stronger copyright rules, extensions and penalties at the proposal of the EU. The final text is aligned with international treaties, such as the Berne Convention and the WIPO Copyright Treaty.
The most contentious aspect of CETA is the Investor-state dispute settlement (ISDS). It would allow foreign corporations to circumvent national courts and seek compensation if their investments are affected by governmental action. In October 2017, the Belgian region of Wallonia refused to grant its consent to the Belgian government to sign the deal. Wallonia negotiated an intra-Belgium Statement, in addition to the Joint Interpretive Instrument (the JPI is agreed with Canada), paving the way to the signing of CETA. These documents clarify aspects of concern such as the ISDS. However, the clarifications are regarded as insufficient by Civil Society Organisations. Along with the intra-Belgium Statement, 38 additional non-binding statements have been put forward by EU member states and institutions. This hints to the difficult path ahead for the ratification of CETA.