Regulations in Favour of Cultural Diversity

A research paper for the conference Regulations in favour of cultural diversity, Cultural Centre De Balie, Amsterdam, 25, 26, 27 September 2003 and the comments on this paper by some participants of the conference

1. Robust regulatory systems
2. Public authorities and competition law
3. Self regulation
4. Paragraaf 4
5. Paragraaf 5
6. Paragraaf 6
7. Paragraaf 7
8. Paragraaf 8
9. Paragraaf 9
10. Paragraaf 10
11. Paragraaf 11
12. Paragraaf 12
13. Paragraaf 13
14. Paragraaf 14
15. Paragraaf 15
16. Paragraaf 16
17. Paragraaf 17
18. Paragraaf 18
19. Paragraaf 19
20. Paragraaf 20
21. Paragraaf 21

Robust regulatory systems

In the fields of film, music, theatre, dance, visual arts, design, and publishing (whether presented in the real world, or by audiovisual or digital means) there are dominant market positions that harm broad access to cultural communication. From a human rights perspective this is a loss. Some of these market-dominating cultural conglomerates are foreign to a country; others are national, as in the USA or Brazil. Left to the market, mergers and take-overs will continue. However, democracy demands the reverse. In all fields of the arts and media, there should be producers, distributors and promoters, who have strong local affinities, and yet originate from many different parts of the world. National states should regulate the cultural market in favour of diversity in order to reach this ideal. A Convention on Cultural Diversity, that would bring culture out of the neo-liberal WTO context, would give states the full right to implement the kinds of regulations they judge necessary for the protection and promotion of cultural diversity.

Kuan-Hsing Chen comments: can one trust national state here? It can be used as weapon against the local opponents. In our parts of the world, no one trusts the national state. So when you say ‘give states full right to implement…’, one gets very nervous about this.

But, once such a Convention on Cultural Diversity exists, and even now, systematic thinking should take place about the kinds of regulations that would be appropriate, for specific categories of the arts, in specific parts of the world. This research paper proposes a format for categorising regulations. Hopefully this format will be corrected and supplied with new or better examples and theoretical considerations. I have only been able to design this structure due to the excellent preceding work of other researchers  (see bibliography), but I would like to mention specifically the work of Gillian Doyle; Ben Goldsmith and his research partners, who have written extensively on regulatory systems; Ivan Bernier, Peter Grant, Garry Neil, and Yvon Thiec whom I have had the great pleasure of interviewing; Stuart Cunningham, a stimulating discussion partner; the International Network on Cultural Diversity, an excellent breeding ground; the Research Group Arts and Economics of the Utrecht School of the Arts,  a more than welcome home from where I visit the world and its arts; and my colleague Giep Hagoort, in the Research Group with whom I enjoy working.

Garry Neil: A very small final point on language is that the INCD is the International Network FOR Cultural Diversity (not “on” as in the paper).

Gillian Doyle is right when she writes that media ownership is “a difficult political minefield”, and therefore ‘the design of a regulatory scheme to deal with concentrations ought to be robust, equitable and squarely aimed at legitimate public policy objectives.’ (2002: 177). Thus our mission is clear, but also extremely complicated. Regulations should be flexible enough to respond adequately to the changing cultural landscape, intelligently composed so that they cannot be bypassed easily or miss the target, practical allowing monitoring, impossible to skirt around juridically, and understandable so that they can be accepted easily.

Ben Goldsmith comments: I agree with Gillian Doyle as cited here, but her point begs the question: what are these objectives?  Perhaps we need to be clearer about this.

There are three main categories of regulations to consider: self-regulation by cultural enterprises, content regulations, and ownership regulations. This is a soft to hard ranking that I will follow in this research paper but before I discuss them separately, we should take into account that more could be done to protect and promote cultural diversity. An appropriate tool would be for public authorities themselves to sustain the production, distribution, promotion and adequate reception of the different forms of the arts.

Kuan-Hsing Chen comments, July 8: exactly what is public authorities themselves?

Ben Goldsmith comments: On the categories of regulations, as I noted above I think that regulation could be understood much more broadly than the self-regulation/content regulation/ownership regulation triad might suggest.

Garry Neil comments, 10 July: There are many more types of regulations than only the three main categories outlined in the paper.  While the paper acknowledges that “competition policy” and “public authorities” can also be used and analyzes their potential briefly, while stating “they are not the object of this research paper,” we must add them to the list, as well as financial subsidies, preferential treatment of domestic suppliers (in television/satellite distribution regulations, copyright regimes, tax policies, acquisition policies and so on), and border measures, all of which seem not to fit in the enunciated categories of regulations.

The second tool is to apply the rules of competition law according to the fields of the arts. These measures are not the object of this research paper, nevertheless I will indicate shortly how they can contribute to the protection and promotion of cultural diversity because they are of course linked to the main topics of this paper.

A final introductory remark is that we should define what the field of research is when we speak about culture and the arts. Using the concept of culture, I do not have in mind the broad anthropological concept of culture. The research is about the broad field of the different forms of the arts. This cultural space is a specific segment in any society. In this sense the arts is a neutral concept. It concerns specific forms of communications that have an aesthetic aspect; that are denser or more fluid in their communication than our normal daily forms of communication; and that mostly take place on more or less specific occasions and locations. Thus, the differentiation between so called high and low arts does not make so much sense when defining the field of the artistic communication. It is an inclusive concept. This makes it possible to investigate all the circumstances of the production, distribution, promotion and reception of music, film, theatre, dance, literature, visual arts, and design in all different media, from the very material to audiovisual and digital.

Ben Goldsmith comments: I don’t understand the point that these specific forms of communication “mostly take place on more or less specific occasions and locations”. While this might be true for films watched in a cinema, or on free to air television, and also true for (most?) live performance art, it is clearly not true for arts/media downloaded from the internet, or sourced by some kind of on-demand system, such as video-on-demand.

The reference  to “all the circumstances of the production, distribution, promotion and reception” of media and the arts sounds much like the “value chain” which informs the new field of creative industries research. 

We can then try to get a grip on why certain forms of the arts get more appreciation, facilities and financial support than others, by whom, and to what extent. We can then try to understand that this broad and neutrally defined field of the arts – from Bach to pornography, and from blockbuster films to nearly silent poems – is, in its meaning and social practice, not neutral at all. It is a highly charged terrain. Individuals and groups of people may hate some forms of the arts while fostering other artistic expressions. The arts are a space full of conflicts, like what kinds of expressions are considered more important than others – and by whom. From a democratic perspective the debate on these kinds of issues should have a chance and artistic diversity should have the opportunity to flourish, as previously said. This is exactly why it is extremely important to regulate the cultural markets in such a way that no form of artistic expression will push away the diversity of artistic expressions.

Ben Goldsmith comments: I would also like to question the final sentence in this section: “This is exactly why it is extremely important to regulate the cultural markets in such a way that no form of artistic expression will push away the diversity of artistic expressions.”  I immediately started to think about the use and appropriation of ‘traditional’ Indigenous (or Aboriginal) Australian motifs and designs in contemporary art works, which raises the intriguing and divisive question of whether certain communities, individuals or groups should have the right to limit or prohibit the use of certain symbols and designs.

Nation-states as “obstacles” to cultural diversity

On the Cultural Diversity Instrument/Convention, one of the things that we need to bear in mind is that nation-states can often be the largest obstacles to the recognition and encouragement of cultural diversity. There are still a great many questions to be answered before anything like a cultural diversity instrument is agreed on by a sufficient number of states.  Perhaps the most pertinent is Would an instrument that “gives states the full right to implement the kinds of regulations they judge necessary for the protection and promotion of cultural diversity” (Joost Smiers’ discussion paper p. 1) necessarily enhance or support cultural diversity, or would it, by reinforcing the power of individual states and regimes to make cultural policy, create a situation in which cultural policy may be used actively to limit cultural diversity by privileging the interests of particular groups over others?

Alinah K. Segobye comments, May 5^th: “We cannot underscore the importance of strong regulatory systems emerging out of civil society-government cooperation to develop legal frameworks which benefit people. Sadly a number of countries on the continent have fairly weakly developed civil society-government partnerships. As a result legal frameworks are developed in paternalistic ways which lack strong inputs from civil society. Many countries are yet to develop cultural policies which will be an important milestone towards developing legal and regulatory frameworks for protecting cultural industries and cultural diversity. To follow up on the Stockholm Declaration, there needs to be increased pressure on African governments to ensure cultural policies are developed in their states through regional or continental forums like SADC or AU.”

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Public authorities and competition law

Before dealing with the real research  topics of this paper – different forms of regulations – we need to note the other existing methods of protecting and promoting cultural diversity. These are the activities of the state itself, and concerns a more significant application of competition law.

Niilanjana Gupta comments: The role of the state is unfortunately not as benign as it should be. In fact, in the post 1991 era (that is when India abandoned its protectionist policies in favour of the privatisation-liberalisation-globalisation formula in all fields) the state has, some of us feel, turned to the arena of culture to provide controversies. Much political will and energy has been diverted    into these areas at the cost of engaging in real political debate about the  economic policies that are being put into place. Eg. There have been controversies centering around censorship of films, internet usage, hindu-isation of the national school curricula, ban on television channels showing fashion shows, anti-western feelings have been fuelled and so on – all by the state.

Kuan-Hsing Chen comments: I am not sure to what extent this is universally applied. State in my living experiences has never been promoter of cultural diversity, it attacks the marginal, the diverse. It further privileges the mainstream, the high.

Roughly speaking, the state has two roles to play. First, where the market does not provide the desired cultural diversity and where some specific artistic creations do not do so well, then it is the task of public authorities, on all levels of governance, to support them and their production, distribution, and promotion, and to shape the conditions for adequate reception. Minority cultures, however they may be defined, should be backed.

Alinah K. Segobye comments: “On the subject of minority cultures (sub heading public authorities and competition law) South Africa presents a very good example of the quandary of cultural diversity and cultural separateness as two sides of a coin. Where the colonial/apartheid governments used cultural diversity to their own divisive ends, the post independence government of national unity is trying to weave a united ‘rainbow’ nation out of the diversity of its people. This is a challenge which also has serious cost implications. By comparison, other countries in the region opted for the ‘one nation’ ‘one culture’ approach which opted to use the colonial language plus one or two local languages for the country. This homogenization is now causing some dissent in some countries (e.g. Botswana) where other people, languages and cultures want to be represented in the national discourse. Since governments have driven many service provisions e.g. education, public health and media, this can have gross cost implications. BUT – it is not impossible to use the private sector to drive these new initiatives. One senses a sense of reluctance from governments though since this increase diversification if often equated to dissent (therefore political) which is a major threat in some of the fragile democracies of the region.”

Ben Goldsmith comments: It is stated that “minority cultures, however they may be defined, should be backed”.  I’m not quite sure what the word “backed” covers here.  This statement could be called a “strong multiculturalist” position.  But what does minority refer to here?  Does this mean that minorities have the right to opt out of national policies and laws where those laws impinge on cultural activity or beliefs?  Would this serve cultural diversity?  I am not taking a position on these questions, I am merely observing that statements such as this one need to be carefully interrogated.

 It is noted that the state has two roles to play, one of which includes to “shape the conditions for adequate reception”.  I should also note at this point my uneasiness with the term “reception”. Recent work in audience and communication studies has pointed to the problems with a model of communication in which the audience passively receives the information/art work/media content.  Audience members do not necessarily receive or interpret this content in the way(s) it was intended, but rather make it meaningful for themselves in a particular context.  Digital technologies permit a level of interactivity, but this is a very broad term.  Tim Berners-Lee has suggested the term “intercreativity” to describe the ways in which the “audience” or users of digital content not only make that content meaningful, but are also able to augment it in some way, and therefore contribute to the dialogue.  Philip Kitley, commenting on the work of Virginia Nightingale in an article on media regulation in Malaysia and Indonesia, writes: “The relation between audience and text is productive and interactive, one that produces culture and always reaches beyond consumption or use to involve, for example, dressing like characters in a series, subscribing to fanzines, joining in online chat groups, attending conferences and discussing the text with friends and colleagues”.[1]

Garry Neil comments: I am uncomfortable with the paper’s formulation that it is the “task of public authorities” to support diversity or “artistic creations that do not do so well.”  Once again, this to me is not a positive approach at all. From the earliest days, human societies have supported their artists, presumably because they make an important contribution to the collective. They make us laugh or cry, help us understand the human condition, or challenge us to think about ourselves.  Someone was out doing the hunting and gathering or the cooking and cleaning (in other words subsidizing) the very earliest artists when they were busy drawing pictures on the cave walls.   Let’s find a way to say it positively and to acknowledge the fundamental role of the artist in society.

In some countries politicians must get used to the idea that greater involvement with the arts should be combined with policies that keep political authorities at arms length from the actual artistic processes. They should not confuse their specific decision making role with the creative task of artistic directors. Public money is meant to serve the promotion of diversity and should not serve the personal interests of politicians, notwithstanding their honest involvement. Support systems may grant subsidies, but also provide artists with certain facilities, and with regard to taxes, take into account their uncertain income position year on year.

A second task may be that the state collects money from enterprises for their use of public spaces. For instance for the US, Robert McChesney proposes that ‘to the extent that commercial media and advertising play a role in a democratic media, they should be taxed to subsidise the non-profit and non-commercial sector. A tax of, say, 1 percent on advertising would generate over $1.5 billion in 1997.’ (1997: 67). Our Creative Diversity, Unesco’s and the United Nations Report of the World Commission on Culture and Development, suggests that at the heart of the debate should be ‘how best to share the global commons in media terms. One simple idea would be to use international taxation to generate new revenue that may be invested in alternative regional and global services and programming. A tax may be used on the commercial use of the global commons, much like taxes which have been suggested elsewhere for cross-border capital flows and fossil fuel consumption.’ (Pérez de Cuéllar 1996: 121,2). Lawrence K. Grossman has launched a comparable idea in an article with the headline: ‘These Airwaves Are Public Property.’[2]

Ben Goldsmith comments: On the point about the state levying funds from enterprises which use public space, there is an ongoing debate here in Australia as in other parts of the world about spectrum licensing and the “quid pro quo” which some claim enables content regulation of broadcasters in return for access to spectrum.  I have to say that at first glance the McChesney advertising levy proposal appears unworkable.  Who would collect the levy?  Who would distribute the revenue collected?  Who would decide how to distribute it, and to whom?

Nina Obuljen comments: “I would add at least one more role that a state could play – and that is to set up some sort of “regulatory bodies” (exist for many other fields such as energy pricing, etc) in order to be able to effectively monitor/influence the impact of any regulations and policies. You are mentioning “monitoring” briefly in the last chapter of your paper (monitoring, the implementation and the effects of regulations).

Many cultural industries are competitive because they avoid paying taxes. Notorious for this behaviour is Rupert Murdoch. It has been found that his ‘News Corporation routes its profits through subsidiaries in low-tax havens like the Netherlands Antilles and Bermuda. Meanwhile, company subsidiaries in relatively high-tax countries like Australia, Britain and the United States reduce their profit levels by claiming high expenses and using other tools of creative accounting.’[3] His position in the cultural landscape would be less dominant if he had to pay taxes.

Ben Goldsmith comments: I disagree with the assertion that Rupert Murdoch’s position in the cultural landscape would be weaker “if he had to pay taxes”.  I think the dynamics of Murdoch’s cultural power have to do with a lot more than the taxes he pays (or doesn’t pay).”

It is amazing that in most states existing competition law does not apply to the cultural field. However, until a decade ago in the US competition law regulated a substantial part of the audiovisual and film world. This was swiftly abolished. This does mean that the usefulness of the kind of regulation that applies to all economic sectors should be kept in mind. Let’s discuss this instrument shortly.

Garry Neil: At the end of the next paragraph in the paper, the reference is really to “cultural firms” and not to “cultural industries.”

If the purpose is to avoid only ownership monopolies in the cultural field then competition law would be sufficient, as it is already for all other sectors of economic life in many countries. The difference, however, is that the conditions for access concerning culture must be even more open, much more open than is necessary for other social activities with an economic character. In the field of the arts a plurality of producing, distributing and promoting enterprises should exist – in any case should have a reasonable chance to exist, and should in no way be blocked in their development by the too dominant market positions of a few big cultural industries.

Competition law does not include these kinds of cultural considerations; neither does it have the tools available for cultural diversity to be respected in the practice of daily life. Nevertheless, in many situations it would be a cultural gain if existing anti-monopoly laws could be applied in the cultural sectors, but this does not happen often.[4] Benjamin Barber is amazed that cultural corporations have the right ‘to swallow one another up, converging, merging, and buying each other out as fast as financing can be found and stockholders bribed. The courts step not in to preserve a public good nor to impede a developing monopoly but only to assure that stockholders profitability will be the only criterion of the deal.’ (1996: 85)

Garry Neil comments:

* First, we must acknowledge that competition laws are a form of regulation.

* While I have not undertaken a definitive study, surely it is not true that “in most countries competition policy does not apply to the cultural field?” This is certainly not the case in Canada, where the Competition Bureau is fully empowered to consider complaints of anti-competitive behaviour by cultural firms.  It has looked at book retailing, the book and magazine distribution businesses, film distribution and others.  While it chooses not to intervene in a substantive manner, cultural industries are not in any way exempt.

* It is definitely not true that the U.S. measures governing anti-competitive behaviour were “swiftly abolished.”  They existed for more than 50 years and the last of them (the prohibition on cross media ownership) is just in the final stages of being abolished by the FCC.

* I do agree  there is considerable scope to apply  competition laws to many cultural industries in new and creative ways.  For example, the practice of packaging movies together and selling distribution rights to multiple markets might be contrary to such laws.  Also, remember that U.S. movies and television programs are usually sold in foreign markets at far less than their cost of production, which is technically “dumping” of the product. This perhaps explains why the U.S. argues so forcefully that films are a “service” notwithstanding the GATT’s recognition of the legitimacy of cinema screen quotas.  If a film is a good and covered by the GATT, the U.S. would be susceptible to a challenge based on the dumping principle.

After these preliminary remarks the field is open to start the categorisation of the three different forms of regulations, these as I have previously indicated are self-regulation by cultural enterprises, content regulations, and ownership regulations. However, we should be aware that in most cases one form of regulations would not be sufficient in order to reach the desired purpose of cultural diversity. For instance, from diversity of ownership it does not automatically follow that diversity of content will arise. (Doyle 2002: 13). This means that regulating authorities should find and prescribe the right mixture of ownership and content regulations. Let’s imagine a town somewhere in the world. In this town there are three cinemas. If all cinemas are in the hands of one company, then decision making about what is on show tonight and tomorrow night is too centralised. To continue the example, we install an ownership regulation that says that every cinema should have a separate owner. However, it may happen that all three new owners buy their films from one source, for instance from mainstream Hollywood. Once again there is a problem for cultural diversity. Thus, the ownership regulation should be complemented with a content regulation. These are two distinct categories of regulations that should complement each other.

Analysis is needed re the kinds of market positions that hamper broad access to the channels of artistic production and communication. Regulators should design flexible kinds of regulations that give answers to already existing problems. At the same time, policies must be predictable for enterprises, as well as for cultural enterprises. However, this should not give them the right to be able to easily block the changes of regulations (in court) which have been introduced in order to promote broad access in the cultural field and to prevent monopolistic situations.

In summing up several content and ownership regulations I will distinguish in both cases the rationale behind them, and the different kinds of regulations that are conceivable and that exist here and there already. The basic idea is to present and discuss as many examples as possible in the fields of audiovisual media, music, the digital world, film, books, visual arts, and design.

The point is that we share at a certain moment a solid and consistent framework of solutions that responds to the needs of categories of different countries, that keeps in mind the distinct character of the different arts and their transmitting tools and outlets.  This needs to be flexible enough to react to changes in technologies, production, distribution, and promotion methods and ownership relations while at the same time being fair to enterprises operating in the cultural fields, yet has the capacity to mobilise many people and cultural organisations to get such regulating systems accepted and introduced.

[1] Philip Kitley (2001) “Subject to what? A comparative analysis of recent approaches to regulating television and broadcasting in Indonesia and Malaysia” Inter-Asia Cultural Studies, vol 2 no 3 p. 504.

[2] Lawrence K. Grossman, These Airwaves Are Public Property, International Herald Tribune, 24 August 1995.

[3] Ken Silverstein, His Biggest Takeover – How Murdoch Bought Washington, The Nation, 8 June 1998.

[4] Robert W.McChesney and John Nichols, Getting Serious About Media Reform, The Nation, 7/14 January 2002.

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Self regulation

In the general overview of regulations in favour of cultural diversity, the responsibility of cultural enterprises themselves should be considered. This is what we may call self-regulation. Cultural corporations should make themselves accountable. The appropriate tool therefore is that they commit themselves to a corporate cultural charter. One should not expect them to voluntarily agree to observe all the categories in the following sections of this research paper, notably to reduce their size and differentiate their contents. It remains the task of public authorities to regulate cultural markets in this perspective. Having said this, however, enough has been left over for cultural enterprises to show themselves as being responsible. Freedom of expression is not at daggers drawn with accountability. What would be the content of a corporate cultural charter to which cultural enterprises (from big to medium sized and small, in different forms of course) would adhere?

First, cultural enterprises promise to outline transparent policies that annihilate the influence of advertisers on artistic and editorial processes. Programs and publicity should be split rigorously.

Second, they commit themselves to carry substantially less publicity than is nowadays more and more the case. Publicity should have a modest place and should not push programming aside. 

Ben Goldsmith comments:  “What is “publicity”? In the list of possible points in a corporate cultural charter, the terms “advertising” and “publicity” are used.  Does “publicity” mean advertising here, or does it mean self-promotion (eg. of upcoming programs on a channel) or cross-promotion (eg. where a television channel promotes a magazine or newspaper owned by the same company), or something else?

Third, advertising will be held to a much higher standard for truth and accuracy than exists at present. (McChesney 1997: 67,8) It is the task of cultural corporations to present only advertisements that comply with this norm.

Fourth, cultural industries commit themselves to take representatives from different social and cultural tendencies onto their boards. No longer will specific segments of society have a say in the policy making of cultural enterprises.

Ben Goldsmith comments: The fourth point in the possible corporate cultural charter is an oxymoron in the form in which it is currently stated.  I think I understand what is meant, but taking on representatives from different social and cultural backgrounds to the boards of cultural enterprises does mean precisely that “specific segments of society have a say in the policy making of cultural enterprises”.

Fifth, artists and thinkers from different ilk will be asked to function on advisory committees. At its highest level social and cultural contradictions must be discussed and the outcomes must stimulate the artistic and cultural decisions cultural enterprises engage themselves in.

Sixth, cultural traditions will be respected and not used for profit making purposes. Local communities will be consulted if plans exist to use materials from their cultural heritage; if the use has been agreed then this should not offend local communities and they will get due payment if their music and other artistic expressions are used. Cultural enterprises themselves agree to respect the social and cultural environment in which they operate.

Ben Goldsmith comments: The sixth point about cultural traditions not being used for profit-making purposes seems to me to be counter-productive.  In Australia, for example, many Indigenous communities rely on the money that artists make from the sale of paintings of their stories and designs.  This is quite different from a non-Indigenous person (eg. Prince Harry) painting similar designs and gaining income from their sale.  On a similar note, one of the most important things that the whole “creative industries” push makes evident is that communities and individuals can earn significant income from the exploitation of their cultural traditions (eg. crafts, recordings of music, transformation of traditional stories through performance or visual art).  Should we be prohibiting this when it is done by the relevant community, with due regard to cultural sensitivities?

Seventh, cultural enterprises work to stimulate the development of diversities of artistic developments in their entrepreneurial practice. They spare a part of their time or distribution capacity for presenting these developments which are more or less an internally defined and must carry obligation.

Ben Goldsmith comments: The seventh point is not clear to me at all.

Eighth, cultural enterprises engage themselves to moral responsibilities. Freedom of expression is not an absolute value, and should be balanced with sustaining moral values. Companies agree to make their policies in this area transparent and engage themselves in public debate on these issues.

Ben Goldsmith comments: The eighth point seems to rely on a pre-existing set of common “moral values”.  But what are these values?  Who sets them?  It is further stated that “companies agree to make their policies in this area …” Which area?

Kuan-Hsing Chen comments: this is the tricky part, moral values cannot be universally agreed.

Ninth, ownership and control on decision-making will be separated. Editorial or artistic agreements seek to prevent proprietors from influencing the editorial and artistic content of the media, production facilities and outlets they own. (Doyle 2002: 152).

Tenth, cultural enterprises should make themselves publicly accountable on all matters concerning that which has been established in their corporate cultural charters, and they agree to present an annual report on these matters. This would include as well measures such as reporting obligations for their political activities, corporate lobbyist practices, and financial donations to political parties. (Balanyá 2000: 178,9)

No such kind of charter exists without pressure from the surroundings. The oil company Shell did not awake one morning and decided voluntarily to make a social and ecological charter. It became clear that the enterprise was behaving irresponsibly, and that this would cost the company too much money and goodwill. It would not be any different with the cultural conglomerates and smaller sized cultural undertakings and they should be pushed to adhere to a corporate cultural charter.

Nilanjana Gupta comments: I can not believe in the efficacy of self -regulations. The section ends with  the example of Shell Oil company developing a social and ecological charter. I  would like to suggest that there were years of environmental activism at local  and global levels that made it necessary for Shell to change its ways (if they  really have). Similarly, cultural activism has to develop, both locally  and globally for there to be any change of heart on the part of conglomerates,  nation-states or other production/distribution networks. Cultural activist  groups, cultural consumers’ associations, or any other forms of pressure groups  or lobby groups need to be created and actively intervene in these debates both  locally and globally, much as the environmentalists have done. Nation-states can  raise these issues at International Meets and Round Tables. More voices need to  be raised and make themselves heard. Only then will regulations evolve and only  then will they be followed.

Unfortunately, it is likely to be rather more difficult as the media coverage  (images of oil drenched birds dying in the sea) which often helps to make such  activism heard –by the people and by the authorites–may not be as sympathetic  to people who are aiming to regulate or curb their own activities!!

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More general comments

Kuan-Hsing Chen comments: this is where the real politics is, you need pressure from the society, but how is that pressure organized in relation to the ‘self-regulator’, usually society is far less organized than these existing institutions, which have resources to deploy, eg. Hiring lawyer to act on their behalf, to deal with the un-organized, powerless groups, or individuals who attempt to confront them.

Nina Obuljen: In the paragraph on self-regulation you enumerated ten different tasks of cultural industries and cultural enterprises. But it is not likely to expect that many of those enterprises (if any) would be willing to limit themselves (particularly if that would represent income decrease for them) unless independent bodies continuously monitor effects of their performance and unless results of such monitoring are made public. While this might seem self-understandable for western democracies, this issue might be particularly sensitive in many transition economies in Central and Eastern Europe (but also other parts of the world). Public authorities are hesitant when they have to introduce rules that might in any way limit the ability of companies to achieve higher profits. Another reason why “self-regulation” might not be so effective is because we see more and more companies entering into this “business sector” even though their core activity might have nothing to do with culture.

Alinah K. Segobye comments, May 5^th: I am interested in the concept of self regulation – many traditional art forms had internal self regulation mechanisms (e.g. taboos, values, community sanction etc.) which could be reflected on and why they now seem ineffective. This would be a useful angle to balance the concept of corporate cultural charter where fairly traditional cultures can use community charters (written or oral) for similar purposes. One is looking here at community cooperative projects such as are emerging in SMMEs in developing countries which tap into traditional knowledge systems but as yet lack the sophisticated corporate structures to enforce such self regulation mechanisms. This would work maybe as a stop gap measure whilst more national and binding frameworks are being developed.

On the subject of the advertising industry, one can argue that this industry, though often tapping into the creativity of African cultures, is often too costly for the investment of even the most willing entrepreneurs. As a result the emergence of a strong ‘African voice’ particularly for emerging entrepreneurs will continue to be weak and bigger multi-national players will continue to dominate the content and character of this industry.

Mike van Graan comments, May 13^th: It is always good to start by proposing that the industry regulates itself, since this is less threatening and provides it with the opportunity to act responsibly without being coerced into certain ways of operating against its will.

I’m not sure if it is because a Charter would look better with ten than with 7 or nine points, but it does appear as if the proposed self-regulations are at times not too different from others, or may not have any clearly discernible direct bearing on the issue at hand.  For example, I am uncertain as to what the third self-regulation that advertising be held to a much higher standard of truth means for the purpose of cultural diversity.  It is also not clear – from a cultural diversity perspective – why cultural enterprises should carry less publicity.

Generally, the recommendations are good starting points for self-regulation, but I think that there is one fundamental problem and that is that companies exist in order to make the maximum profits for their shareholders.  They will not willingly give up on this primary mandate unless there is a very compelling business or moral reason.  Publicity or advertising is a chief source of revenue for some cultural enterprises.  It is not clear as to why “publicity should have a modest place and should not push programming aside” if publicity/advertising generates potentially large sources of income, part of which could be used to implement clause 7 i.e. the stimulation of culturally diverse artistic practices and developments.

Ben Goldsmith comments: On the general idea of the charter, I have a number of questions.  What would be the penalties for non-compliance with the charter?  How could the charter be enforced?  Would it only be possible to require disclosure in annual reports or in information to shareholders?  Should some entity separate from the relevant enterprise publish news about these declarations?  Perhaps an independent entity could rank companies and enterprises in terms of their adherence to the charter, as a kind of public accountability mechanism.

Gillian Doyle comments: Your proposals on self-regulation provide some interesting ideas.  To ensure diversity, it would be helpful if advertisers were prevented from influencing or narrowing the range of content.  But there needs to be a distinction between holding advertisers at arm’s length and limiting the amount of commercial revenue that cultural enterprises are allowed to earn. Like Mike van Graan, I would worry about whether restricting the advertising income available to cultural enterprises might be counter-productive – it could instead drive some borderline players (who may be contributing positively to diversity) out of the market.  There is a more general problem, of course, in terms of incentivising profit-seeking firms to adopt recommendations that may add to their costs or reduce their revenues or both. I think there is still a need to provide persuasive arguments as to why suppliers of cultural and artistic output should take on board such requirements, both in general and in terms of each individual recommendation.

Garry Neil comments: In my view, self-regulation does not work.  Shell has an environmental charter and produces all these lovely commercials about its environmental responsiveness only because it has been forced to do it by activists influencing consumers and governments.  Shell has concluded that it is now in its narrow business interests to embrace environmentalism.  Furthermore, I suspect my colleagues in the environment movement have a completely different perception of Shell’s record in any case.

That said, I agree  there are lessons we can take from the example.  The first is that we need to continue to develop a global activist movement demanding actions on cultural diversity, from business, governments and intergovernmental institutions.  The second is that the threat of potential regulations might be sufficient in some cases to change the behaviour of firms in the sector.  If movie distribution companies fear that regulations will be applied, they are likely to find a way to make at least some money from the distribution of domestic films or films produced by independent producers.

I think we need to consider a different approach on advertising. Advertising revenues are important and often contribute to cultural diversity and I would feel uncomfortable with arguing for a blanket commitment to “carry substantially less publicity.”  For example, in Canada, there is a specialty all-fiction channel that is advertiser supported. Showcase is an interesting case for several reasons.  Its schedule is entirely made up of repeats of dramas and other fiction programs and, by condition of its license, it is almost fully Canadian. Furthermore, in its foreign content, it cannot fill more than 5 percent of its schedule with programs from any other single country.  Thus, advertising dollars are finding their way to Canadian drama programs, an endangered species at the moment.

The advertising revenues of Canadian broadcasters are also protected by regulations.  Since Canadians can receive U.S. television signals directly, where a Canadian broadcaster purchases Canadian rights to a U.S. show and schedules it at the same time as the U.S. broadcasters, the cable or satellite company must substitute the Canadian signal for the U.S. one in that timeslot.  Thus, the Canadian broadcasters can guarantee to its advertisers that every Canadian watching the show will be tuned to the Canadian signal (and its commercials).  This is a valuable policy mechanism that, in theory at least, cross-subsidizes the Canadian programs shown by commercial broadcasters.

I agree that public service broadcasters should be adequately funded to do their job and not be required to chase after advertising revenues.  Their programming decisions should be made exclusively on the basis of the public service mandate.

With the development of the personal digital video recorder that effectively permits a consumer to skip the television advertisements, the film and television advertising model of the future will be quite different from today.  On the one hand, we may see longer ads, with higher production values, that tell a story and attract an audience.  On the other hand, we will increasingly see “embedded” commercials, where the product becomes an integral part of the film or television program and thus cannot be deleted. Consequently, I think the notion of splitting the “programs and publicity” is not practicable.  What we must insist on is full disclosure of who is supporting what.

I find it interesting in the discussion of self-regulation there is no consideration of the obligations of foreign companies.  The U.S. film companies take perhaps as much as $2 billion annually from the Canadian market, in the form of cinema tickets, broadcast rights and rental and sale of movies.  Many Canadians therefore argue it is legitimate to demand these companies to contribute to the maintenance and development of Canada’s production capacity through training programs, location shooting and so on. The infrastructure this activity supports is then available to Canadian producers.

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Content regulations – purposes

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Kinds of content regulations and criteria

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A. Market share

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B. “At least”- percentage of domestic product

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C. Reciprocity policy

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D. “Must carry” system

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More general comments

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Ownership regulations – Purpose

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Kinds of ownership regulations and criteria

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A. Horizontal market dominations

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B. Vertical market dominations

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C. Cross ownership

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D. Foreign market dominations

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E. Informal market dominations

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More general comments

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Monitoring the implementation and the effects of regulations

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General overall comments by several participants

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