Cultural Governance and the European Union

Culture is one of the most puzzling and perplexing policy domains that the European Union (EU or the Union) has entered. The relatively contained EU remit for the development of a cultural policy, reflected in Article 167 of the Treaty on the Functioning of the European Union (TFEU), in recognition of member states’ preponderant role in the field, should not hide from view an array of EU policies that are not meant to be about culture yet touch upon it. The limited cultural policy space that the EU possesses, in accordance with its competences, goes hand in hand with a number of EU policy venues where significant regulatory or financial choices are made with important cultural and political economy implications — those concerned with market-building and functioning, social development and cohesion, or the EU’s relations with partner countries and regions, including trade and cooperation for development. This is because of culture’s transversal nature, which allows for links to be drawn with various EU policy domains, its socio-economic impact, which facilitates the drawing of such links, in the light of the EU’s pre-eminent socio-economic focus, and also the recognition of culture’s potential to forge links between people and spread democratic and social values.

The three initial European Communities were established to address the economic and technological challenges facing Europe after the devastation of the Second World War. But if the immediate goals were expressly economic and developmental, the long-term ones were also cultural and political. Economic integration was seen as the ‘leaven from which will grow a wider and deeper community between countries long opposed to one another by sanguinary divisions’ (Schuman, 1950). In this sense it was a direct response to, and rejection of, the nationalism, totalitarianism and theories of racial superiority that had characterised the recent Fascist regimes. As Ulrich Beck (2006: 163) has observed, ‘Europe’s collective memory of the Holocaust provides the basis for the European Union’.

A new discourse, in which cultural policy is increasingly integrated into a policy agenda dealing with the promotion of creativity, innovation policy, and the fostering of growth and economic competitiveness more generally, has recently gained ground in Brussels. In December 2013, the European Parliament and the Council of the European Union (Council) adopted the new Creative Europe programme (European Parliament and Council, 2013a). The European Commission (Commission) explained that the programme will enable the cultural and creative sectors, described as ‘a major source of jobs and growth’, ‘to reach their potential so that they can contribute to the Europe 2020 goals for sustainable growth, jobs and social cohesion’ (European Commission, 2014a). The new agenda differs quite radically from former European Union (EU) discourses on cultural policy, which laid the emphasis on culture as a key element in the definition process of regional, national and European identities. With the launch of the ‘creativity frame’, a clear paradigmatic change took place and economic concerns became the core of the justification for the EU’s cultural policy. This chapter explains the drive behind this paradigmatic shift. It argues that the Commission’s Directorate General for Education and Culture (DG EAC) initiated and promoted this policy agenda in an attempt to gain control over policy.

According to Articles 2(5) and 6 of the Treaty on the Functioning of the European Union (TFEU), culture forms part of the policy areas in which the European Union (EU or the Union) shall have competence to carry out actions that ‘support, coordinate or supplement’ the actions of the member states, without superseding national competences. On the basis of Article 167 TFEU, the Union has engaged for years in what should essentially be seen as supporting action in the realm of culture through various funding tools, devised to encourage cultural cooperation between the member states. In light of Article 167(4) TFEU, the Union has also sought to cope with the cultural implications of its various policies (Psychogiopoulou, 2008).

Culture remained a rather marginal EU policy area until the adoption of the first-ever European cultural strategy in 2007. The European agenda for culture in a globalizing world (the Cultural Agenda) set three specific objectives that should guide the EU cultural policy forward: promotion of cultural diversity and intercultural dialogue; promotion of culture as a catalyst for creativity; and promotion of culture as a vital element in the Union’s international relations (European Commission, 2007a). By bringing creativity into the equation, the Cultural Agenda provided a discursive link between culture, innovation and broader EU economic concerns such as growth, competitiveness and social cohesion.¹ In so doing, it laid the foundations for the development of a discourse around the contribution of the cultural and creative sectors, or industries, to Europe’s changing economic environment and to the implementation of the EU 2020 strategy for smart, sustainable and inclusive growth (European Commission, 2010a; Council of the EU (Council), 2011a).

It is estimated that around 40,000 cultural objects are illegally removed from European Union (EU or the Union) countries every year and only a very small number of them are ever returned (European Parliament, 2014). Art theft and trade of stolen art are growing and they are often linked with organised crime. The creation of a single, borderless market has been the indisputable cornerstone of European integration. The abolition of physical checks at the internal borders of the Union, necessary for the completion of the single market, has in many ways facilitated art theft and the laundering of stolen art and artefacts (Viantro, 1993: 1166). However, Union law has consistently recognised, throughout the development of the European project, the need for protection of the national treasures of member states.

Pursuant to the 2005 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the protection and promotion of the diversity of cultural expressions (the UNESCO Convention), ‘ “Cultural diversity” refers to the manifold ways in which the cultures of groups and societies find expression … whatever the means and technologies used’ (UNESCO, 2005: Article 4(2)). Parties to this convention may in particular ‘adopt measures aimed at enhancing diversity of the media …’ (ibid.: Article 6(2)(h)). The European Union (EU) ratified the UNESCO Convention confined to its competences in the fields covered by this instrument and without prejudice to member states’ initiatives towards this aim (EU Council (Council), 2006).

The European Union (EU) has a long-standing commitment to the harmonisation of member states’ copyright legislation. Since the early 1990s several regulatory measures have been adopted with the aim to guarantee the proper functioning of the internal market for cultural goods and services. Although primarily designed to correct legislative disparities between national copyright laws, EU copyright directives have been increasingly aimed at preserving and promoting Europe’s cultural diversity. This chapter argues that the understanding of cultural diversity in the context of EU copyright law has significantly evolved over the years. The second section shows that, at the beginning of the process of the harmonisation of copyright, EU law supported cultural creation by strengthening and extending the legal protection of creative content without placing special emphasis on the preservation and promotion of Europe’s cultural diversity. The third section points out that corporate interests evidently prevailed over the objective to protect the interests of individual creators, whose contribution is crucial for the production of diverse cultural content. The fourth section focuses on the legislative interventions that, in certain cases (i.e. private copying and reprography, sales of original works of graphic and plastic art, the recently extended protection of sound recordings) are aimed at securing income for authors and performers in order to support their creative endeavour.

Digital technologies have fundamentally altered the ways in which cultural content is produced, distributed, accessed and enjoyed. Ensuring easy access to digital content online in general and music works in particular has generated a heated debate at the European Union (EU) level over copyright management. Accounting for this has been the longstanding territorial structure of copyright, that is, the practice of clearing rights for the lawful use of copyright protected content on a territorially limited basis — an element that was left untouched by EU harmonisation. With a view to promoting the expansion of digital music services in Europe and their broad uptake, the European Commission (Commission) has sought to encourage models of collective rights management that guarantee a one-stop shop for multi-territorial, pan-European rights clearance. Action initially built on non-binding legislative instruments and the application of EU competition rules. In July 2012, it culminated in a proposal for a Directive on collective rights management and the multi-territorial licensing of rights in musical works for online uses (European Commission, 2012e). In February 2014, the relevant Directive was adopted by the European Parliament and the Council of the EU (Council) (European Parliament and Council, 2014b).

In the context of their domestic cultural policies, the member states of the European Union (EU) resort to a variety of funding tools in order to encourage cultural activities, foster the creation and broad distribution of cultural products and ensure the conservation of heritage (Psychogiopoulou, 2006, 2008). The rationale of public funding is that a laissez-faire economy does not guarantee the protection of cultural and linguistic identities and is not suitable to promote the multiplicity of artistic expressions. By reinforcing domestic industries and the production of niche cultural goods at national and regional levels, public funding aims to prevent ‘cultural uniformity’ (Ferri, 2008).

Many values characterise the policy project of public service media (PSM). Universality, quality, distinctiveness, innovation, identity, diversity and pluralism are among the most common. Identity and diversity might be considered to be somewhat antagonistic. Indeed, whereas the identity building aspect of PSM largely refers to a process of unification around a nation, language and/or culture, the diversity aspect is centrally concerned with the task of reflecting the ever increasing fragmentation within nation states on the one hand and the diversity of cultures globally on the other.

This chapter provides an analysis in overview of the relationship between the European Union (EU or the Union) and minority rights protection, highlighting the emergence, development, strengths and shortfalls of minority rights protection in the EU. Minority protection may not be a comprehensive affair in EU law. However, the EU’s legal framework still pertains to minority issues in ways sufficient to warrant lengthy analysis (Ahmed, 2009a, 2009b, 2010, 2012, 2013; Arzoz, 2008b; de Witte, 2002; Jovanovic, 2012; Nic Shuibhne, 2002; Palermo and Woelk, 2003–2004; Piccoli, 2011; Toggenburg, 2004; Topidi, 2010). This chapter analyses some of the key features of that framework. These include the emergence of EU minority rights in the context of EU enlargement and the importance of minority protection as a value of the EU in Article 2 of the Treaty on European Union (TEU). Article 2 TEU cements the EU’s express commitment to minority protection, but remains a provision to be elaborated by the EU institutions. Substantively, EU anti-discrimination law is the predominant legally binding tool for minority protection in EU law and provides protection for minorities who are discriminated against, on a number of grounds relevant to minority group characteristics. However, the scope of protection for each ground differs (religion being most restrictive), and while policy measures in EU anti-discrimination law can target group problems, litigation challenging breaches of relevant EU law rights is based on an individual model and cannot therefore be used to tackle issues of a collective nature.

The successful conclusion and adoption by nearly all United Nations Educational, Scientific and Cultural Organization (UNESCO) members of the 2005 Convention on the protection and promotion of the diversity of cultural expressions (the UNESCO Convention or the Convention) introduced a new chapter in the perennial disputes over cultural trade (VanGrasstek, 2006). Against the background of continuing trade liberalisation talks in the Doha Development Round of the World Trade Organization (WTO), high hopes emerged, with actors seeking a firm recognition of cultural concerns in future international relations and cooperation. The UNESCO Convention sets forth a series of principles and provisions, amply discussed in the literature (e.g. Craufurd Smith, 2007a; Graber, 2006; Obuljen and Smiers, 2006; Richieri Hanania, 2014; von Schorlemer and Stoll, 2012), which may contribute to mitigating long-standing tensions in ideas, interests and institutions related to trade and culture.

This book has sought to explore how the EU has taken up the concept of culture, and acted in the field. Supranational bodies adopt concepts and ideas but they are not necessarily passive recipients of pre-existing discourses concerning them (Schmitt, 2011: 18). Concepts can be framed in specific ways or can even be changed, generating a specific vision of objectives to be attained. In the realm of culture, a certain degree of complexity arguably exists because cultural policies commonly confront (and frequently address simultaneously) two categories of goals: intrinsic and extrinsic (Bonet and Négrier, 2011: 576–577; Holden and Baltà, 2012: 7). The first category of objectives typically translates into public support measures for culture’s own sake, with the argument that culture has value in its own right. The second category of objectives leads to measures that draw on culture as a means to pursue public policy goals, for instance of an economic or social nature. Culture becomes an instrument in this sense — it is considered to have instrumental value. Specifically in the EU context, complexities also arise on account of the principle of subsidiarity that underpins EU cultural action; the transversal nature of culture, which brings it within the sphere of various EU policies, beyond the EU cultural policy proper; and the involvement of the EU in the activities of various supranational institutions that have their own ‘cultural’ vocation, in accordance with their competences.