The Trans Pacific Partnership and the Fight Over a Cultural Exception

This week’s leak of country-by-country positions on a Trans Pacific Partnership included a notable reference to the inclusion of a cultural exception. Canada stands with a slight majority in seeking a cultural exception that would presumably exclude the cultural industries (broadcast, audio-visual, music, books, etc.) from the ambit of key TPP provisions such as foreign investment restrictions or other legislated forms of cultural protections.  Other supporters of a cultural exception include Australia, New Zealand, Chile, Brunei, Malaysia, and Vietnam. Opponents include the U.S., Peru, Mexico, Singapore, and Japan.

The emergence of the cultural exception issue is interesting because U.S. lobby groups were specifically concerned with the prospect that Canada would pursue an exception if admitted into the TPP negotiations.  For example, the IIPA (which represents the major music, movie, and software lobby groups) stated the following in January 2012 with respect to the possible admission of Canada into the TPP:

IIPA is also concerned about the significant market access barriers to U.S. copyrighted materials that Canada maintains pursuant to the “cultural exception” in its FTA with the U.S. Canada has interpreted this exception to be unreasonably broad, even to encompass discriminatory application of its copyright law, and has insisted on this misinterpretation of the exception in similar provisions in other trade agreements. IIPA strongly opposes the inclusion of any such cultural exclusion in the TPP, and the Canadian government must understand that TPP will not admit of such exceptions.

The battle over the inclusion of a cultural exception is not limited to the TPP.  The new Canada – EU Trade Agreement apparently includes a cultural exception with the government’s technical summary noting that the deal features: “Exceptions for measures with respect to cultural industries are included in various chapters to maintain Canada’s flexibility to protect and promote cultural industries, policies and programs.” The EU was a willing partner on cultural exceptions as it similarly wants one in the proposed EU – US trade agreement (France has said the issue is non-negotiable). This suggests that the cultural exception could prove to be a very difficult issue to resolve as the Canadian government might face the prospect of sacrificing its cultural policies as part of a TPP bargain.

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