Cultural exemptions at risk in NAFTA renegotiations: Nantel

NDP heritage critic Pierre Nantel is raising the alarm that cultural protection could be on the chopping block if a wholesale renegotiation of the country’s trade agreement with the United States and Mexico occurs, and is asking the heritage minister to take a stand. In an opinion piece published in French-language newspaper Le Devoir Wednesday, Nantel said Canadian — and specifically, Quebecois — culture is at risk as more people turn to foreign digital platforms like the over-the-top (OTT) service offered by Netflix Inc., where domestic content isn’t a priority. In the article, Nantel said Heritage Minister Mélanie Joly was evasive when asked about NAFTA, adding that President Donald Trump’s administration is looking to insert clauses into the agreement that would keep Canada from applying the same rules to Netflix that currently apply to traditional broadcasting. Speaking in the House of Commons on April 13, Nantel cited Le Devoir in reporting that Trump “intends to renegotiate NAFTA and that he wants to abolish the cultural exemption that has protected our distinct culture for 30 years. This means that our films, our music, and all of Quebec culture will get no protection from the American steamroller.” He asked Joly if she would “immediately declare that the cultural exemption in our free trade agreements is non-negotiable.” In response, Joly said “of course we recognize the important contribution of the arts and culture to society and Canada's economy. NAFTA negotiations have not begun. However, if Canada receives notification of the intent to negotiate, we will be ready.” The minister also pointed to her work in promoting cultural diversity with international colleagues and with large digital media platforms. The heritage minister is promising big reforms, but it looks like she’s consulting on the best fire extinguisher design while the barn is burning, Nantel wrote in Le Devoir, adding that Joly “should show courage, and fast. The future of our culture is at stake.” With no formal negotiations underway, the ramifications of a new NAFTA on the audiovisual sector are confined to speculation. In a phone interview, independent broadcast consultant Kelly Lynne Ashton said it’s still a worthwhile issue to raise, despite there having “just been an assumption that because culture has been consistently excluded under international trade, that it just won’t apply .” But if the Americans were to come on strong, Ashton said she wouldn’t be surprised to see cultural provisions put on the table. At the end of March, a draft letter authored by Stephen Vaughn, the acting U.S. trade representative, outlining potential NAFTA renegotiation priorities made its way online. It said the U.S. would look to ensure that the NAFTA countries refrain "from implementing measures that impede digital trade in goods and services, restrict cross-border data flows, or require local storage or processing of data... and where legitimate policy objectives require domestic regulations that may affect such trade or flows, obtain commitments" that those regulations are "the least trade restrictive, non-discriminatory, and transparent, and promote and open market environment." It also included provisions about protecting “market access opportunities” for U.S. citizens who “rely on intellectual property protection.” As Internet law expert Michael Geist said in a March 31 blog post, the statements “sound harmless,” but “the references to fair and non-discriminatory access are likely to lead to demands that Canada re-open the NAFTA culture provisions.” He linked it to an exception in the Trans-Pacific Partnership that said Canada can adopt measures to support Canadian content unless it places “discriminatory requirements on service suppliers or investors to make financial contributions for Canadian content development” or the measures restrict “access to on-line foreign audiovisual content.” This effectively rules out “virtually any expansion of Cancon contributions to currently exempt services,” Geist wrote. “I think any attempt to expand our current regulation could be fought under NAFTA,” Ashton said, but added that Joly hasn’t signalled through her recent actions “she would be fighting hard for those things.” Victor Rabinovitch, a distinguished fellow with the Queen’s University school of policy studies, said in a phone interview that though the U.S. has identified the country’s Canadian content regulations as a foreign trade barrier, Canada isn’t alone in having protectionist measures for culture. Where Canada does stand out, he added, is as a leader, alongside France, in promoting cultural diversity. Rabinovitch said his reading of the current agreement doesn’t preclude Canada from taking certain measures — such as taxing foreign digital platforms — right now and that the question around renegotiating NAFTA comes from technological advancements that didn’t exist when the agreement was first signed. “The fear would be that someone, somewhere would agree to a new general rule that would prevent innovation in Canadian content and Canadian distribution,” Rabinovitch said. “Or to put it a cruder way, it would be the Americans saying, ‘we’re the big guys on the block, that’s exactly how we want it to stay and you guys all have to agree that you’re going to do nothing to stop us from being the one and only big guys.’” — With reporting by Charelle Evelyn at cevelyn@thewirereport.ca and editing by Anja Karadeglija at akarad@thewirereport.ca

Cultural exemptions at risk in NAFTA renegotiations: Nantel

Broadcast | May 4, 2017

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