A new approach: Protocols on cultural cooperation
Aware of the challenge for the EU - being one of the driving forces behind the successful conclusion of the Convention - to lead by example in the implementation of the new instrument, the Commission has undertaken action. After the UNESCO Convention became operative in 2007, the Commission concluded protocols on cultural cooperation in parallel with bilateral trade agreements. The first protocol was signed with CARIFORUM on 15 October 2008 in the framework of the EU-CARIFORUM economic partnership agreement (EU-Cariforum, 2008). In 2009, the EU and Korea initialled another protocol on cultural cooperation, which was signed in 2010 (EU-Korea, 2011).
Aims of protocols on cultural cooperation
In general, protocols on cultural cooperation (see also Psychogiopoulou, 2014; Richieri Hanania, 2012; Pauwels and Loisen, 2010) are aimed at promoting the principles of the Convention within the context of bilateral trade negotiations and seek to externalise the EU's cultural policy objectives at the international stage. The Convention not only provides the background for the protocols' development, but the definitions and concepts of the Convention are also used. The protocols include a series of horizontal provisions targeting cultural exchange and dialogue among the parties to the agreement as well as among their artists and other cultural professionals. For developing countries, a section on technical assistance is included as well. The general idea of increasing cultural exchange is elucidated in rather weakly binding sectoral provisions on the performing arts, publications, the protection of sites and historic monuments, and audiovisual cooperation (Richieri Hanania and Ruiz Fabri, 2014: 503). Regarding the latter, a specific provision has been included, however, granting preferential treatment for audiovisual co-productions, thereby implementing also the Audiovisual Media Services (AVMS) Directive (European Parliament and Council, 2007) in which the possibility is foreseen that audiovisual co-productions between companies of EU member states and third- party companies are classified as 'European works' - which would make them eligible to be included in the quota provisions that parties to the protocol have installed to protect and support their audiovisual industries.
With regard to the protocol negotiated with CARIFORUM, the first specific aim was to implement Article 16 of the Convention, which requires developed countries to facilitate cultural exchanges with developing countries by granting preferential treatment to artists and other cultural professionals and practitioners, as well as cultural goods and services from developing countries. This action intended to show international partners that the EU takes up its responsibility by swiftly implementing the Convention, as well as building on the latter's momentum in order to mainstream culture in external relations in a new and innovative way. According to the Commission, the EU-CARIFORUM protocol represents
a new formula for addressing cultural capacity building and cultural exchanges in a trade agreement, as it does not consist of traditional trade commitments but rather cooperation through concrete means which have the effect of improving cultural exchanges between Europe and the countries concerned while preserving the capacity to develop cultural policies.
(European Commission, 2010f: 10)
A second and related objective of concluding protocols on cultural cooperation was to ensure a fast ratification of the Convention by the EU's partners. Developing new partnerships with third countries could broaden and strengthen the alliance in support of the Convention, which is especially relevant considering the United States' bilateral strategies to further audiovisual trade liberalisation (Wunsch-Vincent, 2003). Thirdly, the commitments made in the protocols would facilitate an exchange in cultural goods and services between the trade partners, while still acknowledging the dual nature of these goods and services. With respect to audiovisual services, in particular, the Commission wanted to make clear that the traditional position still holds: trade provisions concerning market access do not apply to audiovisual services. These are exclusively to be dealt with in protocols on cultural cooperation, to be annexed to the trade agreements negotiated in parallel. Finally, the Commission contended that no one-size-fits-all approach could adequately take into account the dual nature of culture and the protocols therefore needed to be realised on a case-by-case basis. Concretely, more leeway should be awarded to developing countries, whereas relations with countries with already developed cultural industries should be based on the principle of reciprocity (European Commission, 2009e: 18-19; Loisen and De Ville, 2011: 259). Therefore, in the protocol with Korea, not Article 16, but Article 20 of the Convention provides the basis for implementation, as it requires parties to take into account the Convention when entering into other international obligations such as international (trade) agreements.
In spite of the Commission's 'good' intentions, several stakeholders, led by France, and including European Coalitions for Cultural Diversity, various national coalitions for cultural diversity and sector representatives, questioned the Commission's proactive approach (Harcourt, 2012: 721). Although some criticisms were already apparent during the negotiation of the first protocol with CARIFORUM, these would really take centre stage when discussing a protocol with Korea - arguably because of the latter's economically much stronger cultural sectors, the audiovisual sector in particular (Richieri Hanania and Ruiz Fabri, 2014: 503).