In this essay, Professor Sanders analyzes how cultural products and their exchange has entailed and fostered a huge debate about the relevance of Non-Trade Concerns in the framework of free trade agreements and WTO laws and negotiation. Indeed, as a matter of general policy, the protection of cultural diversity is a key concern within the European Union laws, and audiovisual companies are supported by many kinds of subsidies and by the so-called “screen quotas.” Such practices serve, among other things, also to keep trade barriers to “protect” the culture of media products from the United States. Consequently, they have raised objections to such processes. Professor Sanders tackles this topic in a practical perspective, offering a real account of the framework in this area that could help both practitioners and scholars. On this matter, Professor Sanders focuses his attention in the main upon China, and tell us in a vivid narrative how the WTO Appellate Body declared some Chinese laws and regulations of audio-visuals contrary both to the General Agreement on Tariffs and Trade (GATT) and the General Agreement on Trade in Services (GATS). He then goes on analyzing real cases. It is worth stressing here a legal case. The claim, brought under WTO by the U.S., concerned minimum copyright standards, ex art. 4, Copyright Law of the People’s Republic of China, which denied copyright protection to works not previously approved for circulation by the State Administration for Radio, Film, and Television (SARFT). This causes not only domestic censorship – which is the most serious concern – but entailed also a quota of twenty foreign films allowed on the market per year. The fact here is that China - practically speaking - by denying copyright protection to a wide range of foreign works, was causing a growing demand for pirated products. Quite oddly, the judicial decision of the Panel claimed China’s right not to deny copyright protection but – which is rather different - to suppress the distribution of copyright works on the basis of the Berne Convention, and therefore - in very practical terms - recognized the right of states to censor in general. This kind of dispute has both GATS and GATT elements. It is clear, however, how the real desire of China, beyond the economy, is to exercise full political and cultural control over its media market. As a conclusion, what it is to be stressed here is that, in China, there are many gaps as to the enforcement of intellectual property rights, and this inevitably entails a worrying growth of pirated (and thus illegal) products, as Chinese people are eager to access a culturally diverse range of media. As a consequence, new disputes over the control exercised over imported products and their distribution arise. In the end, only the future will tell whether China’s trading partners will accept or will be successful in changing China’s policy and law, and how the results will change.
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