Since the circulation of the Preliminary Report and Preliminary Draft of the UNESCO Convention for the Protection of the Diversity of Cultural Contents and Artistic Expressions, Canada has actively and vigorously supported a transparent, effective and inclusive process that would enable UNESCO Member States to shape this important new international instrument. We would like to thank the Director General, the Secretariat, and the Group of Experts who were instrumental in the preparation of the preliminary draft. We would also like to thank the Chair of the Plenary of the Intergovernmental meeting of experts for his leadership in this process. As indicated by our delegation during that meeting in September 2004 in Paris, Canada believes the text prepared by experts, and issued by the Director General, constitutes a good basis for discussion and negotiation.

Canada warmly welcomes the opportunity for UNESCO Member States to submit their written comments on the preliminary draft to the Secretariat. We are clearly moving into a new phase of discussions on the Convention, a phase where States will be required to make decisions and choices. The process of providing written submissions, and the anticipated work of the drafting committee will assist UNESCO in preparing a draft convention that reflects a broad based consensus on key issues related to the preservation and promotion of a diversity of cultural expressions. Canada will continue to actively participate in the development of this Convention, including participation as an Observer during the work of the Drafting Committee. We are eager that the discussions that will take place during the meeting of the Drafting Committee in December lead to the preparation of a revised draft Convention that will serve as the basis of discussion at the next meeting of the Plenary in January 2005.

We believe that the work must continue to reflect the mandate that the 32^nd UNESCO General Conference provided to the Director General. Canada is optimistic that the significant amount of work that remains before us will be accomplished in the coming months, and that a draft Convention will be ready for submission to the next meeting of the General Conference in October 2005. We will continue to work in partnership with all UNESCO Member States, with representatives of civil society, international organizations, the Chair and Bureau of the Plenary, with the UNESCO Director General and the Secretariat, to ensure that we achieve our common objectives.

Canada’s submission is divided into two main sections. The first focuses on our general impressions of the preliminary draft – these are general comments. The second section provides a more detailed analysis of the text. We have provided the Secretariat with suggested alternative text in specific areas, as well as suggestions for deletion and addition. It must be noted that Canada makes these comments without prejudice to positions we may take in the future and reserves the right to make additional comments throughout this process. Our submission’s silence on any section does not imply consent or agreement. The process of dialogue, discussion and negotiation will assist us in clarifying our positions and building a global consensus on this important Convention.

Top

General Comments

Canada was encouraged by the active participation and high level of engagement of delegations at the first session of the intergovernmental experts meeting in September 2004. It was an excellent opportunity for those present to learn about and exchange views on the preliminary draft Convention. It was, however, evident that there were widely divergent views on the preliminary draft, with some Member States calling for the enlargement of the scope and objectives of the Convention. Given this development, Canada believes it is important to recall the mandate given to the Director General by Member States at the 32^nd session of the General Conference in October 2003. The clear decision of Member States was to focus the scope of the Convention on cultural contents and artistic expressions rather than attempt to cover all aspects of cultural diversity.

Member States will recall that issues such as cultural rights, the status of the artist and a new protocol to the Florence Agreement were presented as options to them at the 166^th session of the Executive Board and the 32^nd session of the General Conference. Following comprehensive debates where all of these options were discussed, Member States reached consensus to confer upon the Director General the mandate to submit a Preliminary Report accompanied by a Draft International Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions (Resolution 32C/34) at its next session (October 2005).

Given that the mandate delivered in 2003 was very specific, and that a number of other important aspects of cultural diversity are already addressed, or being addressed in a variety of other instruments, declarations or fora, Canada would like to reiterate its strong support for a very focused convention. The scope of this Convention should remain on cultural contents and artistic expressions – one that recognizes the dual nature of cultural goods and services as having both an economic and social value, and which re-affirms the right of States to take measures in support of the diversity of cultural expressions.

Top

Title

To this end, and to reflect the way in which the Preliminary Draft text has merged terms "cultural contents" and "artistic expressions", we would recommend that the title of the Convention be renamed the Convention for the Preservation and Promotion of the Diversity of Cultural Expressions. This title enhances the positive role of the Convention and clearly delineates its focus. Language throughout the text should reflect this new title and care should be taken to ensure that references to cultural diversity be replaced with "the diversity of cultural expressions."

Top

Human Rights Considerations

When working on the front end of the Convention (scope, objectives, principles, and obligations), the need to ensure that nothing within it be used to justify or contribute in any way to the derogation from existing international human rights obligations should be underscored. This Convention should at no time be used to justify human rights abuses in the name of cultural diversity.

While the primacy of human rights obligations needs to be identified, the introduction of new rights-based language in the Convention is problematic. The creation of new rights, whether collective, linguistic, cultural or individual, should be avoided in order not to lose sight of the primary focus of this Convention - the preservation and promotion of the diversity of cultural expressions.

Top

Objectives

The objectives of the Convention should be reflective of its scope, and though Canada is generally satisfied with the objectives, they should be further refined. The objectives should reflect the two concepts referred to above:

Recognition of the dual nature of cultural goods and services; and
Reaffirmation of the right of States to take measures in support of the diversity of cultural expressions.

Though the first of these is currently reflected in the Preliminary Draft Convention, the second is not. If the Convention is to serve as an international point of reference, this second concept needs to be a central objective of the Convention.

Top

Rights, Obligations and Principles

The rights, obligations, and principles should flow from both the scope and objectives of the Convention.

The Convention should provide for a balance between the rights of States Parties to adopt policies and measures, and the obligations on them to do so in line with clear principles, and in due consideration of other States Parties’ pursuit of the objectives of the Convention. Further consideration needs to be given to the question of how the Convention should strike this balance.

Additionally, obligations to support diverse cultural expressions at the national level should reflect the needs of each of the States Parties according to their own circumstances. To that end, a number of suggestions have been made with reference to articles 5 through 10 in the article by article analysis that follows.

Finally, the role of principles in defining the obligations on States Parties is not clear, as some are declaratory in nature, and others are articulated as obligations. Governmental experts will need to consider the role of the principles, and whether they should take the form of general declarations or whether they should be guiding principles linked to the obligations of the Convention.

Top

Definitions

Like most international agreements, the scope and content of this Convention will largely be determined by the definitions it contains. Though we have made a number of suggestions in the article by article analysis section, we would recommend that the definitions section be revisited at the end of the drafting process to ensure that they are reflective of the scope and content of the Convention, and further, that they are kept precise, with superfluous wording or definitions removed.

Top

Relationship to Other International Instruments

While two options have been proposed under Article 19 within the current Preliminary Draft text, Canada feels that more work is needed to elaborate an option that fulfills the objectives of the Convention. Because they are closely related, Canada also believes that the concepts addressed in Articles 13 and 19 should be considered together.

A strong and effective Convention will have its rightful place within the international legal system. It should be mutually supportive and non-hierarchical with other international agreements. It can and must achieve its important objectives while being consistent with the rights and obligations of States under existing international agreements.

Well-defined cultural policy norms that reinforce the importance of measures in support of the diversity of cultural expressions under this Convention can inform the future elaboration of other relevant international agreements. In this way, the Convention could promote greater policy coherence at both the national and international level.

We look forward to further discussions with other members of UNESCO to clarify these issues.

Top

International Cooperation

Recognizing that many developing countries do not yet have fully developed cultural industries or the measures in place to support the diversity of cultural expressions, Canada supports the idea of appropriate international cooperation as part of this Convention. However, before any determination can be made about the need for a development fund, or specific obligations for international cooperation, as noted above with regard to the obligation section, further work will be required to clarify both the scope and objectives of the Convention. Furthermore, an appropriate relationship between articles 12, 16 and 18 will need to be elaborated in order to effectively address this important area of the Convention.

Additionally, consultation with developing countries party to the Convention would be required to determine their needs and lead to appropriate and focused cooperation. As such, further intergovernmental dialogue is required to determine what specific obligations can be undertaken to meet the needs of developing countries. Canada would also like to highlight that development assistance should not be limited to providing financial assistance, but rather, be open to alternatives such as technical assistance and capacity-building through professional and international cultural exchanges, and sharing of best practices.

Top

Follow-Up Bodies and Mechanisms

If the Convention is to assume its rightful role within the international system, it will require effective and appropriate follow-up bodies, as well as timely and accessible procedures to resolve relevant disputes between States Parties in certain situations. However, it is difficult at this stage of discussion to determine the requirements of the Convention with regard to follow-up bodies and mechanisms. These should be elaborated once the scope, objectives and obligations have been clarified. For this reason, our submission has only general commentary on this section of the text.

Generally, Canada notes that care should be taken not to create structures that are unnecessarily complicated, onerous or costly. Existing mechanisms should be used whenever possible and appropriate. As an example, in the case of the Cultural Diversity Observatory, use of an existing UNESCO institutions like the Institute for Statistics or the Secretariat may prove to be a more cost-effective solution. Further, reporting requirements should be limited so as not to overly burden States Parties to the Convention, nor create unnecessary work for the Secretariat. Finally, the idea of an Advisory Group of Experts raises a number of accountability questions and should be set aside, as it overly complicates the structure of the Follow-Up Bodies.

Top

Conclusion

Overall, Canada believes that the focus, at this stage in the intergovernmental and drafting process, should be aimed at clearly delimiting the scope, objectives and principles of the Convention. The obligations should flow from this exercise, with the follow-up mechanisms to be determined once these essential sections are decided.

Canada wishes to thank the UNESCO Secretariat for this opportunity to provide its written submission. We look forward to continuing our work, recognizing that the challenge before us is significant. We welcome the opportunity to continue to exchange with other Member States with a view to achieving an effective Convention of the Preservation and Promotion of the Diversity of Cultural Expressions.

Top

Article by Article Commentary

In order to simplify the task of the Secretariat in preparing the compendium and synthesis of written comments for submission to the Drafting Committee and the Intergovernmental Meetings of Experts, these submissions are only for articles where we suggest amendments, deletions or additions. They will be provided in their entirety as options for the Drafting Committee and the Intergovernmental Meetings of Experts to consider.

Top

Preamble

Preamble paragraph 2 - replace with:

Affirming the importance of cultural diversity as a common asset of humanity that should be recognized and preserved for the benefit of all,

Preamble paragraph 3 – delete

Preamble paragraph 4 – replace with:

Being aware, that cultural diversity, flourishing within a framework of democracy, tolerance and social justice, contributes to stability at the national and international levels,

Preamble paragraph 5 – replace with:

Celebrating the importance of cultural diversity in the full realization of human rights and fundamental freedoms,

Preamble paragraph 6 – replace with:

Recognizing that cultural diversity can be nurtured by widening participation in the international exchange of cultural expressions and is nurtured by constant exchanges between cultures and facilitated by the free flow of ideas by word and image,

Preamble paragraph 7 – replace with:

Affirming that freedom of thought and freedom of expression, including the freedom to seek, receive and impart information and ideas in writing, print or in any other media, contribute to the flourishing of cultural expression within countries and to the access thereto by the greatest number of individuals,

Preamble paragraph 8 – replace with:

Recognizing that the diversity of cultural expressions is an enriching factor for individuals and cultural groups because it allows them to express and share with others their ideas, values and creativity,

Preamble paragraph 9 – replace with:

Recognizing the benefit to the ongoing vitality of cultures, including for persons belonging to minorities and indigenous groups, that derives from the creation, dissemination and distribution of cultural goods and services,

Preamble paragraph 10 – replace with:

Underlining the vital role of the creative act, which nurtures cultural expressions,

Preamble paragraph 11 – replace with:

Being convinced that cultural goods and services are not ordinary merchandise or consumer goods, but are of both an economic and cultural nature, conveying identities, values and meanings.

Preamble paragraph 12 – replace with:

Noting that while the processes of globalization, which have been facilitated by the rapid development of information and communication technologies, afford unprecedented conditions for enhanced interaction between cultures, these same processes present new challenges for public policies aimed at preserving and promoting the diversity of cultural expressions,

Top

Part I – Objectives and Guiding Principles

Article 1 - Objectives

General Comment – we are generally satisfied with the objectives, though some further work will be required. Additionally, defining the key terms used in their elaboration will be important in order to provide clarity.

Specific amendments: Replace the appropriate subparagraphs with the following:

1(c) to reaffirm the right of States to maintain or adopt policies and measures that they deem appropriate for the preservation and promotion of a diversity of cultural expressions on their territory;

1(e) to encourage wider cultural exchanges between the countries of the world;

1 (g) to strengthen international cooperation and solidarity in a spirit of global partnership with a view, in particular, to fostering the capacities of developing countries to preserve and promote the diversity of cultural expressions.

Article 2 – Principles

General Comment – The purpose of the principles, as set out in Article 2, is not clear. While some principles seem declaratory in nature, others, such as paragraphs 2.8 and 2.9, take the form of obligations. There needs to be further consideration of the role of the principles, and whether they should take the form of general declarations or whether they should be guiding principles linked to the obligations of the Convention. Canada believes that the Drafting Committee and Intergovernmental experts should consider these alternatives, before specific drafting is considered. The substance and form of the principles would then follow from the outcome of that discussion.

Top

Part II – Scope of Application and Definitions

Article 3 – Scope of the Convention

Current text:

This Convention shall apply to the cultural policies and measures that States Parties take for the preservation and promotion of the diversity of cultural expressions.

Addition of Article 3 bis:

No State Party shall invoke the provisions of this Convention in order to infringe human rights guaranteed by international law or to limit the scope thereof.

Article 4 - Definitions

General Comment – The definitions section of the Convention should reflect the content of the Convention. Only the key terms used in the Convention require a definition. On this basis, there is no need for definitions of "culture" or "cultural diversity." Further, we do not believe that the illustrative list in the Annex is appropriate or helpful.

Article 4.1 – delete definition

Article 4.2 – delete definition

Article 4.3 – replace with the following:

"Cultural expressions" refers to the creative output of cultural undertakings which are intended to be provided to the public and which convey symbolic meanings or cultural values that are distinct from the commercial value of that output. These include: 1) the creative output of individuals in the performing arts, visual arts and crafts, 2) the sounds, images and texts of films, video, sound recordings, books, magazines, broadcast programs and other forms of media including multimedia, whether now existing or to be invented, and 3) the collections and displays of museums, galleries, and libraries, including archives relating to the cultural heritage of a society.

Article 4.4

General Comment – For purposes of clarity, concise definitions are required for cultural goods and services; further, we recommend that the Annex be removed. Cultural goods should be defined distinctly from cultural services. While cultural goods do "embody or yield" cultural expressions, there are services that are related to cultural expression that may not, in themselves, embody cultural expression. Rather, they may be the object of cultural policies and measures whose purpose it is to preserve and promote the diversity of cultural expressions.

The following definitions for Article 4.4 are offered for consideration:

"Cultural goods" refers to those goods that embody or yield cultural expressions.

"Cultural services" refers to the creation, production, publication, distribution, dissemination, exhibition, marketing, provision and sale of cultural expressions

Article 4.5

General Comment – The Convention should refer not only to cultural industries but to all "cultural undertakings" involved in cultural expression, including natural persons, public and private organizations, and firms that create, produce, publish, distribute, disseminate, market, exhibit, provide or sell cultural expressions.

Article 4.6 – delete definition

Top

Part III – Rights and Obligations of States Parties

Article 5 – General Rules on Rights and Obligations

General Comment – there should only be one paragraph.

Replace Article 5 with the following:

The States Parties, in conformity with the Charter of the United Nations and the principles of international law, re-affirm their right to adopt policies and measures to preserve and promote the diversity of cultural expressions and undertake to exercise this right in conformity with this Convention.

Article 6 – Rights of States Parties at National level

Change title of Article to: Support for Diverse Domestic Cultural Expressions

Article 6.1 – replace with:

Within the framework of its cultural policies, and taking into account its own particular circumstances and needs, each State Party has the right to determine what constitutes a domestic cultural expression or a domestic cultural undertaking, and adopt cultural policies or measures aimed at preserving and promoting the diversity of domestic cultural expressions and supporting domestic cultural undertakings.

Article 6.2

General Comment: Illustrative lists may be helpful in clarifying the scope of coverage of the provision. The list should also include a reference to measures to regulate foreign investment and foreign ownership of cultural undertakings and regulatory requirements for cultural undertakings to make particular kinds of expenditures.

Article 6.2 (a) – replace with:

Policies and measures which reserve a certain space for domestic cultural goods and services within the national territory, in order to ensure opportunities for their production, distribution, dissemination and consumption, and include, where appropriate, provisions relating to the language used for the above mentioned goods and services;

ADD NEW Article 6.2 (a) bis

Measures concerning investment related to domestic cultural industries.

Article 6.2 (f) – replace with:

Measures which establish or support cultural public service institutions including public service broadcasters, libraries, archives, galleries, museums, and such other institutions that the State Party deems to be an institution that performs a public cultural function; and facilitate and encourage public access to them

Article 7 – Obligation to Promote the Diversity of Cultural Expressions

Article 7.1 – should be deleted

Article 7.2 (a) – should be deleted

General Comment – Article 7.1 (a) and (b) go beyond the objectives of the Convention, creating international obligations in areas of exclusively domestic responsibility. Article 7.2 (a), on the status of the artist and creators, is valid with respect to the policies and measures that States Parties take with respect to the objectives of the Convention. However, with regard to specific obligations in this Convention, there are other international instruments and international fora already addressing these issues. This Convention should therefore not create rights and obligations with regard to these subjects. Intergovernmental experts, however, may wish to consider signaling the importance and relevance of these issues within the Preamble.

With respect to Article 7.2 (b), we recommend further discussion on how States Parties can address piracy within the context of this Convention.

Article 8 – should be deleted

General Comment – As the issues found within this article are dealt with, or being dealt with, in a number of other instruments or fora, we recommend that this article be deleted.

Article 9 – Obligation of information and transparency

Suggest addition of new sub-article to Article 9 – insert following:

Ensure transparency in the development and implementation of their cultural policies.

Article 9 (a) – replace with:

Designate or establish a point of contact responsible for information-sharing with relation to this Convention.

Article 9 (b) – replace with:

Ensure the establishment of a mechanism to share and exchange information relating to the preservation and promotion of the diversity of cultural expressions;

Article 9 (c) – delete this sub-article

Article 9 (d) – replace with:

Notify UNESCO every four years of the new measures that have been taken to preserve and promote the diversity of cultural expressions within their territory and to ensure openness towards foreign cultural expressions.

Article 10 – Obligation of Public Awareness and Education

General Comment: Canada is undertaking ongoing consultations with the provinces and territories on this article, given that education is in the domain of provincial and territorial governments.

Article 12 – Rights and Obligations relating to International Cooperation – Objectives

Replace article 12 with the following:

States Parties shall endeavour to strengthen their cooperation, particularly in order to:

enhance the capacity of cultural industries, particularly in developing countries, countries in transition and least developed countries, to participate in international cultural exchanges;
enable, to this end, the emergence of viable local and regional markets for cultural goods and services;
facilitate wider participation in the global market and international distribution networks for the cultural goods and services of all countries;
encourage, to the extent possible, the mobility of artists and creators;
enhance public sector management capacities in cultural public service institutions;
introduce appropriate incentive measures for the purpose of encouraging the transfer of technology and exchange of knowledge and best practices for developing countries in the area of cultural industries.

Article 13 – International Consultation and Coordination

General Comment – The concepts addressed in Articles 13 and 19 should be considered together in the same part of the text.

Article 15 – Establishment of a Cultural Diversity Observatory

General Comments – Canada believes that we need to closely examine the follow-up mechanisms of this Convention. The creation of a new body such as a Cultural Diversity Observatory, may consume important resources. As we pursue appropriate and effective follow-up mechanisms, we should examine what role the UNESCO Institute on Statistics and/or the Secretariat could play in achieving many of the objectives outlined in this article.

Article 16 – Cooperation for Development

Replace title of article 16 to: International Cooperation

Replace article 16 with the following:

For the purposes of this Convention, States Parties shall endeavour to support cooperation in pursuit of development objectives, in part and as deemed appropriate, and within the context of a State Party’s specific needs, by the following means:

exchange of information and experience as well as the training of human resources in developing countries and countries in transition, to support the formulation of their cultural policies;
support for creative work, cultural production and creators to foster the emergence of a dynamic cultural sector in developing countries and countries in transition;
strengthening of the cultural production and distribution capacities of developing countries and countries in transition in order to increase their presence at both national and international levels;
adoption of appropriate measures, in developed countries, with a view to facilitating to the extent possible, circulation in their territory of the cultural goods and services of developing countries and least developed countries;
other forms of appropriate financial and technical assistance, such as, for example, the establishment of a voluntary International Fund for Diversity of Cultural Expressions, the modalities of which would be determined by the Intergovernmental Committee, or the provision of low-interest loans and grants to stimulate and support creativity;
any other form of assistance which may be deemed appropriate.

Article 17 – Preferential treatment for developing countries

Replace article 17 with the following:

Developed countries shall facilitate cultural exchanges with developing countries and least developed countries by granting preferential treatment, as appropriate.

Article 18 – Partnership for Development

General Comment – Developing countries will need to identify what type of partnerships are required within the context of their own national development plans. As such, further dialogue will be required.

Article 18.1 – replace with the following:

In pursuance of the objectives of this Convention, States Parties shall emphasize the development of innovative partnerships, between and within the public and private sectors and non-profit organizations, in order to encourage capacity building to preserve and promote the diversity of cultural expressions in developing countries. States Parties shall seek to ensure that partnerships take into account the special needs of developing countries and could encourage, in part and as appropriate, the development of infrastructure, human resources and policies in the cultural sphere.

Article 18.2 – delete subparagraph

Article 18.4 – replace with

The Intergovernmental Committee shall evaluate the request for support together with the inventory.

Article 18.5 – replace with

Further to its evaluation, the Intergovernmental Committee, in consultation with the requesting country, shall identify potential partners, establish contact between such partners and the requesting country and contribute, if necessary, to the conclusion of a partnership agreement.

Article 18.6 – replace with

States Parties shall seek to ensure that partnerships shall be developed, to whatever extent possible, with a view to providing, whenever required, a regional response to the needs identified.

Top

Part IV – Relationship to Other Instruments

Article 19 - Relationship to other instruments

General Comment – As noted above, the concepts addressed in Articles 13 and 19 should be considered together in the same part of the text.

Top

Part V - Follow-Up Bodies and Mechanisms

General Comment – It is premature to make specific comments on the follow-up mechanisms of the Convention, without a further discussion and clarification on its scope objectives and principles. Canada’s main concern is that the mechanisms be cost effective, efficient and conducive to the satisfactory resolution of disputes between States Parties regarding the effects of their implementation of rights and obligations contained within the Convention

We are particularly concerned with the establishment of an expert advisory group as a permanent body or mechanism. We believe it is appropriate to look at the establishment of ad hoc advisory bodies to support the work of any intergovernmental committee. We look forward to ongoing dialogue with other UNESCO Member States on these measures.

Top

Part VI – Final Clauses

Article 29 – Federal or non-Unitary States Clause

General Comment – Canada would note the specific importance it accords to article 29. We strongly support its inclusion in the Convention, and suggest the following amendment:

Article 29 (b) – replace with:

With regard to the provisions of this Convention, the implementation of which comes under the jurisdiction of individual constituent States, provinces, cantons or other similar territorial entities which are not obliged by the constitutional system of the federation implement them, the federal government shall inform the competent authorities of such States, provinces, cantons or other similar territorial entities of the said provisions, with its recommendation for implementation.

[ Print friendly ]

Canada's Commitment to Cultural Diversity

New International Instrument on Cultural Diversity

International Network on Cultural Policy

La Francophonie and Cultural Diversity

Canada @ the OAS

Canada @ UNESCO

International Relations and Policy Development

Multilateral Relations

Bilateral Relations

Policy Development

Speeches / Statements / Releases

Site Map

Any comments?


	Date modified: 2004-11-19	Important Notices