European policy makers appear on the brink of making the same mistake as when the Television without Frontiers directive morphed into the Audiovisual Media Services directive: serious consideration was then given to expanding the earlier legislation to include interactive entertainment such as online games. Luckily the majority soon realized that beneath the same “skin” of audio and video signals, the gaming experience had nothing to do with watching a movie or a TV show: the former depends on each player’s input while producers that make the latter possible embrace the religion of unaltered content, whether obtained via “linear” or “non-linear” distribution.

History repeats itself
Today industries bound to sprawling audiovisual rules tend to recommend that regulators should cast their net wider. The wider the party the wilder, or so goes their line of reasoning. Though one can understand where they come from – shared pains feel lighter – this ill-conceived advocacy jeopardizes innovation across Europe, hence the competitiveness of European creation worldwide.

The French Federation of Telecoms (FFT) is a case in point. Having portrayed digital technology as the main engine of growth for cultural content, they claim the prize of top contribution to French culture and invite like-minded sectors to walk in their footsteps. No mad rush in sight though. Whether device makers, network equipment manufacturers or OTTs, they all built excellence on unrelenting focus on their core business. They hesitate to join schemes that look so convolutedly foreign to it.

Half abdicating Europe’s time-honoured lead in the arts is as inconvenient as confessing half-pregnancy: either you stop playing or you swing hard
There is another fly in the ointment concocted by the FFT: their invitation to share the pain takes the cultural exception for granted. Not quite actually. In essence, the cultural exception declares a vaguely defined sanctuary of products and services immune to the application of international trade rules. This goes over and above Article XIV of GATS whose “general exceptions” provide for adoption or enforcement of national measures to protect public morals, order or health, privacy, safety or to prevent fraud as long as they introduce no discrimination or disguised restrictions on trade in services.

Because such relief was not enough to allow for the protracted and comprehensive breach of trade rules that European governments contemplated to protect culture, they designed the cultural exception in 1994. But the jury is still out on two counts: how long this derogation will stay; which of the GATS or of the UNESCO Convention on cultural diversity takes precedence.

This nagging legal uncertainty is the root cause of the EU’s heated debate last month over the cultural exception and the TTIP. The digital revolution actually robs the cultural exception of its “raison d’être”. Content scarcity – the excuse for State subsidies and quotas – has made room for worldwide glut as the internet gives easy access to all content anytime anywhere and turns all users into producers, potentially. Cultural diversity rocks as a result of this sea-change whereby quality content hardly needs government props to meet its public.

Watch your cultural step
What culture means is worth pondering though in order to dispel ambiguity. The internet is rightly hailed as the ultimate culture fluid, a “bouillon de culture” the French would say. Arguably more akin to what will happen behind the closed doors of a laboratory than to the glittering acts performed on stage, this fledgling form of culture no less informs the future of mankind. Self-proclaimed ushers of culture sent mushrooming by the analogue era now join forces with tax authorities to get hold of whatever is cooking in the “Petri dishes” of the internet. But they should think twice: pull the plug and this burgeoning new culture will die out of deprivation of the milieu that nurtures it.

No high v pop culture, rather organic v canned
The only culture the FFT call reflects is the culture of dependency. Whoever gives undivided attention to crafting the best-ever shield thereby gives up on being bold. Conquerors wouldn’t walk on crutches. Cultures able to win over the world feed upon the very nutrients to be found in the “Petri dishes” that the internet affords all users. A perfect tool for mass collaboration, the internet is often painted as an extended network of micro- or mini-labs where future content is brewing. If so, fostering home-grown creativity and giving it a chance to meet with global success starts with securing internet access for all and letting the market decide.

While perfectly fit for the digital era this change of tack could accommodate State aid regardless, as long as subsidies would come out of taxpayers – in their capacity as custodians of national culture – and go to all national legacy-building production. Indeed why compel global hits to fund content nobody wants to watch, play or listen to?

The brain fathers of the cultural exception deserve commendation for tapping non-EU entertainment to fund their idea of European culture so successfully over such a long period of time. However, digital technology has ushered in a brand new deal by powering entertainment to new heights and easing access to culture. Granted, the FFT has climbed only lately on the bandwagon of the cultural exception: its record of abetting those who had a decades-long field day distorting markets is therefore short. Regardless, telecoms operators must realize that this game is over.

Author :