Culture and creative industries in Australia

This paper draws upon the Australian case to argue that the case for support for cultural production and cultural infrastructure has been strengthened overall by its alignment to economic policy goals. In this respect, the rise of creative industries policy discourses is consistent with trends in thinking about cultural policy that have their roots in the Creative Nation strategies of the early 1990s. In terms of the earlier discussion, cultural policy is as much driven by Schumpeterian principals as it is by Keynesian ones. Such an approach is not without attendant risks, and two stand out. The first is the risk of marginalizing the arts, through a policy framework that gives priority to developing the digital content industries, and viewing the creative industries as primarily an innovation platform. The second is that other trends in the economy, such as the strong Australian dollar resulting from the mining boom, undercuts the development of cultural production in the sections of the creative industries where international trade and investment is most significant, such as the film industry and computer games. Nonetheless, after over a decade of vibrant debate, this focus on linking the cultural and economic policy goals of the creative industries has come to be consistent with broader international trends in the field.

Emerging Powerful Southern Voices: Role of BASIC Nations in Shaping Climate Change Mitigation Commitments

This book chapter explores the role of Brazil, China, India and South Africa (BASIC) in shaping mitigation commitments within the United Nations Framework Convention on Climate Change (UNFCCC)

A Submission to the Joint Standing Committee on Treaties on the Anti-Counterfeiting Trade Agreement 2011 (# ACTA)

“If Hollywood could order intellectual property laws for Christmas, what would they look like? This is pretty close.” David Fewer “While European and American IP maximalists have pushed for TRIPS-Plus provisions in FTAs and bilateral agreements, they are now pushing for TRIPS-Plus-Plus protections in these various forums.” Susan Sell “ACTA is a threat to the future of a free and open Internet.” Alexander Furnas “Implementing the agreement could open a Pandora's box of potential human rights violations.” Amnesty International. “I will not take part in this masquerade.” Kader Arif, Rapporteur for the Anti-Counterfeiting Trade Agreement 2011 in the European Parliament Executive Summary As an independent scholar and expert in intellectual property, I am of the view that the Australian Parliament should reject the adoption of the Anti-Counterfeiting Trade Agreement 2011. I would take issue with the Department of Foreign Affairs and Trade’s rather partisan account of the negotiations, the consultations, and the outcomes associated with the Anti-Counterfeiting Trade Agreement 2011. In my view, the negotiations were secretive and biased; the local consultations were sometimes farcical because of the lack of information about the draft texts of the agreement; and the final text of the Anti-Counterfeiting Trade Agreement 2011 is not in the best interests of Australia, particularly given that it is a net importer of copyright works and trade mark goods and services. I would also express grave reservations about the quality of the rather pitiful National Interest Analysis – and the lack of any regulatory impact statement – associated with the Anti-Counterfeiting Trade Agreement 2011. The assertion that the Anti-Counterfeiting Trade Agreement 2011 does not require legislative measures is questionable – especially given the United States Trade Representative has called the agreement ‘the highest-standard plurilateral agreement ever achieved concerning the enforcement of intellectual property rights.’ It is worthwhile reiterating that there has been much criticism of the secretive and partisan nature of the negotiations surrounding the Anti-Counterfeiting Trade Agreement 2011. Sean Flynn summarizes these concerns: "The negotiation process for ACTA has been a case study in establishing the conditions for effective industry capture of a lawmaking process. Instead of using the relatively transparent and inclusive multilateral processes, ACTA was launched through a closed and secretive “‘club approach’ in which like-minded jurisdictions define enforcement ‘membership’ rules and then invite other countries to join, presumably via other trade agreements.” The most influential developing countries, including Brazil, India, China and Russia, were excluded. Likewise, a series of manoeuvres ensured that public knowledge about the specifics of the agreement and opportunities for input into the process were severely limited. Negotiations were held with mere hours notice to the public as to when and where they would be convened, often in countries half away around the world from where public interest groups are housed. Once there, all negotiation processes were closed to the public. Draft texts were not released before or after most negotiating rounds, and meetings with stakeholders took place only behind closed doors and off the record. A public release of draft text, in April 2010, was followed by no public or on-the-record meetings with negotiators." Moreover, it is disturbing that the Anti-Counterfeiting Trade Agreement 2011 has been driven by ideology and faith, rather than by any evidence-based policy making Professor Duncan Matthews has raised significant questions about the quality of empirical evidence used to support the proposal of Anti-Counterfeiting Trade Agreement 2011: ‘There are concerns that statements about levels of counterfeiting and piracy are based either on customs seizures, with the actual quantities of infringing goods in free circulation in any particular market largely unknown, or on estimated losses derived from industry surveys.’ It is particularly disturbing that, in spite of past criticism, the Department of Foreign Affairs and Trade has supported the Anti-Counterfeiting Trade Agreement 2011, without engaging the Productivity Commission or the Treasury to do a proper economic analysis of the proposed treaty. Kader Arif, Rapporteur for the Anti-Counterfeiting Trade Agreement 2011 in the European Parliament, quit his position, and said of the process: "I want to denounce in the strongest possible manner the entire process that led to the signature of this agreement: no inclusion of civil society organisations, a lack of transparency from the start of the negotiations, repeated postponing of the signature of the text without an explanation being ever given, exclusion of the EU Parliament's demands that were expressed on several occasions in our assembly. As rapporteur of this text, I have faced never-before-seen manoeuvres from the right wing of this Parliament to impose a rushed calendar before public opinion could be alerted, thus depriving the Parliament of its right to expression and of the tools at its disposal to convey citizens' legitimate demands.” Everyone knows the ACTA agreement is problematic, whether it is its impact on civil liberties, the way it makes Internet access providers liable, its consequences on generic drugs manufacturing, or how little protection it gives to our geographical indications. This agreement might have major consequences on citizens' lives, and still, everything is being done to prevent the European Parliament from having its say in this matter. That is why today, as I release this report for which I was in charge, I want to send a strong signal and alert the public opinion about this unacceptable situation. I will not take part in this masquerade." There have been parallel concerns about the process and substance of the Anti-Counterfeiting Trade Agreement 2011 in the context of Australia. I have a number of concerns about the substance of the Anti-Counterfeiting Trade Agreement 2011. First, I am concerned that the Anti-Counterfeiting Trade Agreement 2011 fails to provide appropriate safeguards in respect of human rights, consumer protection, competition, and privacy laws. It is recommended that the new Joint Parliamentary Committee on Human Rights investigate this treaty. Second, I argue that there is a lack of balance to the copyright measures in the Anti-Counterfeiting Trade Agreement 2011 – the definition of piracy is overbroad; the suite of civil remedies, criminal offences, and border measures is excessive; and there is a lack of suitable protection for copyright exceptions, limitations, and remedies. Third, I discuss trade mark law, intermediary liability, and counterfeiting. I express my concerns, in this context, that the Anti-Counterfeiting Trade Agreement 2011 could have an adverse impact upon consumer interests, competition policy, and innovation in the digital economy. I also note, with concern, the lobbying by tobacco industries for the Anti-Counterfeiting Trade Agreement 2011 – and the lack of any recognition in the treaty for the capacity of countries to take measures of tobacco control under the World Health Organization Framework Convention on Tobacco Control. Fourth, I note that the Anti-Counterfeiting Trade Agreement 2011 provides no positive obligations to promote access to essential medicines. It is particularly lamentable that Australia and the United States of America have failed to implement the Doha Declaration on the TRIPS Agreement and Public Health 2001 and the WTO General Council Decision 2003. Fifth, I express concerns about the border measures in the Anti-Counterfeiting Trade Agreement 2011. Such measures lack balance – and unduly favour the interests of intellectual property owners over consumers, importers, and exporters. Moreover, such measures will be costly, as they involve shifting the burden of intellectual property enforcement to customs and border authorities. Interdicting, seizing, and destroying goods may also raise significant trade issues. Finally, I express concern that the Anti-Counterfeiting Trade Agreement 2011 undermines the role of existing international organisations, such as the United Nations, the World Intellectual Property Organization and the World Trade Organization, and subverts international initiatives such as the WIPO Development Agenda 2007. I also question the raison d'être, independence, transparency, and accountability of the proposed new ‘ACTA Committee’. In this context, I am concerned by the shift in the position of the Labor Party in its approach to international treaty-making in relation to intellectual property. The Australian Parliament adopted the Australia-United States Free Trade Agreement 2004, which included a large Chapter on intellectual property. The treaty was a ‘TRIPs-Plus’ agreement, because the obligations were much more extensive and prescriptive than those required under the multilateral framework established by the TRIPS Agreement 1994. During the debate over the Australia-United States Free Trade Agreement 2004, the Labor Party expressed the view that it would seek to mitigate the effects of the TRIPS-Plus Agreement, when at such time it gained power. Far from seeking to ameliorate the effects of the Australia-United States Free Trade Agreement 2004, the Labor Government would seek to lock Australia into a TRIPS-Double Plus Agreement – the Anti-Counterfeiting Trade Agreement 2011. There has not been a clear political explanation for this change in approach to international intellectual property. For both reasons of process and substance, I conclude that the Australian Parliament and the Australian Government should reject the Anti-Counterfeiting Trade Agreement 2011. The Australian Government would do better to endorse the Washington Declaration on Intellectual Property and the Public Interest 2011, and implement its outstanding obligations in respect of access to knowledge, access to essential medicines, and the WIPO Development Agenda 2007. The case study of the Anti-Counterfeiting Trade Agreement 2011 highlights the need for further reforms to the process by which Australia engages in international treaty-making.

Trade wars in the TRIPS Council: Intellectual property, technology transfer, and climate change

This Chapter considers the geopolitical conflicts in respect of intellectual property, trade, and climate change in the TRIPS Agreement 1994 under the World Trade Organization (WTO). In particular, it focuses upon debates in the TRIPS Council on the topic of patent law and clean energy in 2013 and 2014. The chapter highlights the development agenda of a number of developing countries who are keen for access to clean energy to combat climate change and global warming. It also considers the mixed contributions of members of the BRICS/ BASIC group – including Brazil, India, China, and South Africa. This chapter highlights the intellectual property maximalist position of a number of developed countries on intellectual property, climate change, and trade. Seeking to overcome this conflict and stalemate, this Chapter puts forward both procedural and substantial reform options in respect of intellectual property, trade, and climate change in the TRIPS Council and the WTO. It also flags that the TRIPS Agreement 1994 could well be displaced by the rise of mega-regional trade agreements – such as the Trans-Pacific Partnership (TPP), and the Trans-Atlantic Trade and Investment Partnership (TTIP).

A study of entrepreneurship : Taiwanese digital content companies in China

China’s accession to the World Trade Organisation (WTO) has greatly enhanced global interest in investment in the Chinese media market, where demand for digital content is growing rapidly. The East Asian region is positioned as a growth area in many forms of digital content and digital service industries. China is attempting to catch up and take its place as a production centre to offset challenges from neighbouring countries. Meanwhile, Taiwan is seeking to use China both as an export market and as a production site for its digital content. This research investigates entry strategies of Taiwanese digital content firms into the Chinese market. By examining the strategies of a sample of Taiwan-based companies, this study also explores the evolution of their market strategies. However, the focus is on how distinctive business practices such as guanxi are important to Taiwanese business and to relations with Mainland China. This research examines how entrepreneurs manage the characteristics of digital content products and in turn how digital content entrepreneurs adapt to changing market circumstances. This project selected five Taiwan-based digital content companies that have business operations in China: Wang Film, Artkey, CnYES, Somode and iPartment. The study involved a field trip, undertaken between November 2006 and March 2007 to Shanghai and Taiwan to conduct interviews and to gather documentation and archival reports. Six senior managers and nine experts were interviewed. Data were analysed according to Miller’s firm-level entrepreneurship theory, foreign direct investment theory, Life Cycle Model and guanxi philosophy. Most studies of SMEs have focused on free market (capitalist) environments. In contrast, this thesis examines how Taiwanese digital content firms’ strategies apply in the Chinese market. I identified three main types of business strategy: cost-reduction, innovation and quality-enhancement; and four categories of functional strategies: product, marketing, resource acquisition and organizational restructuring. In this study, I introduce the concept of ‘entrepreneurial guanxi’, special relationships that imply mutual obligation, assurance and understanding to secure and exchange favors in entrepreneurial activities. While guanxi is a feature of many studies of business in Pan-Chinese society, it plays an important mediating role in digital content industries. In this thesis, I integrate the ‘Life Cycle Model’ with the dynamic concept of strategy. I outline the significant differences in the evolution of strategy between two types of digital content companies: off-line firms (Wang Film and Artkey) and web-based firms (CnYES, Somode and iPartment). Off-line digital content firms tended to adopt ‘resource acquisition strategies’ in their initial stages and ‘marketing strategies’ in second and subsequent stages. In contrast, web-based digital content companies mainly adopted product and marketing strategies in the early stages, and would adopt innovative approaches towards product and marketing strategies in the whole process of their business development. Some web-based digital content companies also adopted organizational restructuring strategies in the final stage. Finally, I propose the ‘Taxonomy Matrix of Entrepreneurial Strategies’ to emphasise the two dimensions of this matrix: innovation, and the firm’s resource acquisition for entrepreneurial strategy. This matrix is divided into four cells: Effective, Bounded, Conservative, and Impoverished.

Private television production companies in China : new strength in the market

As most people know, all mass media, including television stations, are state-owned in China. However, with the economic reform in the broadcasting system and China entering the World Trade Organization (WTO), the television industry has expanded greatly and the television market has evolved, with an ensuing growth of competition. The players in China’s television industry have changed from a monologue of TV stations to stations that hold multiple roles and a growth of production companies and overseas television companies although the TV stations still dominate China’s television market. Private television production companies are, however, becoming increasingly active in this market.

Competition laws and policies in China and Hong Kong : a tale of two regulatory journeys

Reviews the background to China's enactment of the Anti-Monopoly Law in 2007 and compares the debate surrounding the proposed introduction of similar legislation in Hong Kong. Examines the main issues arising during the Law's 13 year drafting stage, its key provisions and the remaining areas of uncertainty concerning its enforcement. Discusses ongoing efforts to introduce competition law regulations in Hong Kong, the main features of the draft General Competition Law and the shortcomings of its approach to penalties and exemptions.

Post-WTO China : competition and technology transfer laws in the 'new' socialist market economy

China has been the focus of much academic and business scrutiny of late. Its economic climate is changing and its huge new market opportunities seem quite tantalizing to the would-be 'technology entrepreneur'. But China's market is a relatively immature one; it is still in the process of being opened up to real competition. The corollary of this is that, at this stage of the transitional process, there is still significant State control of market function. This article discusses Chinese competition law, the technology transfer system, how the laws are being reformed and how the technology entrepreneur fares under them. The bottom line is that while opportunities beckon, the wise entrepreneur will nevertheless continue to exercise caution.

Reclaiming China's former soft power

The discussion begins with a discussion of soft power and creativity in contemporary China. The article then examines three development trajectories: territory, technology and taste. The third section examines the effects of taste in more detail through examples of China's creativity in art, philosophy and technology primarily in three key periods, the Western Zhou, Han, and Song The principal argument is that while China’s cultural authority was established on deep Confucian roots, its international influence, and its creativity, is indebted to periods of openness to ideas.

Keeping up with the neighbours : China's soft power ambitions

Over the past century numerous waves of transnational media have washed across East Asia with cycles emanating from various centers of cultural production, such as Tokyo, Hong Kong, and Seoul. Most recently the People’s Republic of China (PRC) has begun to exert growing influence over the production and flow of screen media, a phenomenon tied to the increasing size and power of its overall economy. The country’s rising status achieved truly global recognition during the 2008 Beijing Olympics. In the seven years leading up to the event, the Chinese economy tripled in size, expanding from $1.3 trillion to almost $4 trillion, a figure that made it the world’s third largest economy, slightly behind Japan, but decisively ahead of its European counterparts, Germany, France, and the United Kingdom. The scale and speed of this transformation are stunning. Just as momentous are the changes in its film, television, and digital media markets, which now figure prominently in the calculations of producers throughout East Asia.

Governing a copyright culture in post-WTO China : copyright in the film and music industries, 2001 - 2005

In 2001 China amended its copyright law in accordance with the requirements of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS). This thesis explores the impact of copyright reform on China’s domestic film and music industries. Through extensive interviews with film and music industry workers – directors, producers, executives, judges, lawyers and musicians – it investigates the role of copyright in film and music’s shift from state driven to commercially focussed. The construction and negotiation of a new ‘copyright culture’ in China is examined through the lens of Yurchak’s (1999) concept of ‘entrepreneurial governmentality.’ Administrative structures put in place prior to China’s economic reform are no longer capable of controlling film and music production and consumption and new approaches to managing it are becoming more important. High levels of unauthorised distribution are forcing these industries to adapt their business models so that they can function in a system with weak copyright protection. Legal, economic and political changes have resulted in the emergence of an ‘entrepreneurial governmentality’ among film and music industry professionals. This commercially focussed group is, in turn, increasing pressure on the state to expand the space in which it can function and support efforts to strengthen the copyright system that allows it to exist. It is suggested that the construction and negotiation of a new ‘copyright culture’ is now taking place. This thesis describes the current situation in the film and music industries. It examines the tension between the theoretical possibilities created by copyright law, and the practical challenges of operating in China. It observes innovative business models being applied by film and music businesses in China. It discusses the impact of traditional attitudes to copying and also examines the role that open licensing models might play in helping limit the negative effects of copyright protection on public access to content and in raising levels of education about copyright among key groups within the community.

China and the "Responsibility to Protect" : the implications of the Libyan intervention

The emerging principle of a “responsibility to protect” (R2P) presents a direct challenge to China’s traditional emphasis on the twin principles of non-intervention in the domestic affairs of other states and non-use of military force. This paper considers the evolution of China’s relationship with R2P over the past ten years. In particular, it examines how China engaged with R2P during the recent Libyan crisis, and considers what impact this conflict may have first, on Chinese attitudes to R2P, and second, on the future development and implementation of the doctrine itself. This paper argues that China’s decision to allow the passage of Security Council resolution 1973, authorising force in Libya, was shaped by an unusual set of political and factual circumstances, and should not be viewed as evidence of a dramatic shift in Chinese attitudes towards R2P. More broadly, controversy over the scope of NATO’s military action in Libya has raised questions about R2P’s legitimacy, which have contributed to a lack of timely international action in Syria. In the short term at least, this post-Libya backlash against R2P is likely to constrain the Security Council’s ability to respond decisively to other civilian protection situations.

Going out and the search for originality in China

Can China improve the competitiveness of its culture in world markets? Should it focus less on quantity and more on quality? How should Chinese cultural producers and distributors target audiences overseas? These are important questions facing policy makers today. In this paper I investigate how China might best deploy its soft power capabilities: for instance, should it try to demonstrate that it is a creative, innovative nation, capable of original ideas? Or should it put the emphasis on validating its credentials as an enduring culture and civilisation? In order to investigate these questions I introduce the cultural innovation timeline, a model that explains how China is adding value. There are six stages in the timeline but I will focus in particular on how the timeline facilitates cultural trade. In the second part of the paper I look at some of the challenges facing China, particularly the reception of its cultural products in international markets.