Home > Regular Columns > Talking Heads, 9 February 2016: CBB

Talking Heads, 9 February 2016: CBB

Free Trade Agreements are not good for the cultural industries

Could TPPA mean less TV jobs in NZ? It seems hard to believe but that was the result of its predecessor, the GATS.

Ahhh the TPPA.

Much like Dirty Politics, it’s one of those issues that dominates the news but hardly anyone knows the details. Those who oppose TPPA often struggle to make a coherent sentence about why it’s wrong. On the other hand, supporters usually support it because John Key says they should. Like any political “he said/she said” it comes down to who you believe is telling the truth, or at least knows what they’re talking about.

If we look at this tussle as a rugby game, the pro-TPPA side undoubtedly has the points on the board to win the game – winning is one of the benefits of being in government. But this year, play seems to have moved into their own half, even threatening their own 22, because the discussion has moved.

Last year, TPPA discussions centred on the gains for dairy/exports versus hits on pharmaceuticals/copyright. The TPPA seemed to be just a very big free trade agreement.

This year the media have noticed it’s a bit more than that. The Investor State Dispute Settlement (ISDS) process is a real thing, corporations have sued governments overseas for hindering profits, and those governments have paid millions of dollars in fines, kickbacks, out-of-court-settlements and legal fees.

This is a bit like the anti-TPPA fullback kicking long and deep into government territory while the protestors run up to the ball much as they ran onto the motorway. The pro-TPPA team must pull away the mauling opposition, gather the ball and decide what to do with it. They opted to kick for touch claiming that we already have such clauses in our existing free trade agreements but unlike other countries, we’ve never been sued. Maybe the assumption is that New Zealand is too big to be sued, though that hasn’t stopped corporations taking on Australia, Canada and Germany.

And of course that’s absolutely right – NZ has never been sued over one of these investor/state agreements, but we have been affected by them and it seriously weakened our television production industry. It’s meant less television programmes are made and there are less television jobs for New Zealanders.

How NZ’s TV industry lost out

It started in 1998 when the National Government’s Minister of Culture was considering compulsory local content broadcasting quotas. Quotas are pretty common around the world 1 and are an effective way to support local music, support local television and reduce the impact of dominant cultural values – in other words stop our kids talking with American accents. So the Minister quietly asked the bureaucrats to look into it.

Unfortunately the report commissioned by the Ministry 2 concluded that quotas would breach the General Agreement on Trade in Services (GATS) that NZ signed in 1994. The report figured that quotas would limit the ability of foreign record labels and television producers to turn a profit in New Zealand. The rationale was simple – US Studios wouldn’t be able to sell as much content to NZ networks if there were limits on how many hours of American programmes could be broadcast here.

In 2000 the issue arose again when the new Labour Government had to back away from election promises to introduce NZ content quotas. As Helen Clark said at the time:

“We have unilaterally disarmed ourselves on trade but very few others have been so foolish. We’re now left with perfectly legitimate calls for local content and people saying ‘You can’t do that because of Gats’. This seems a bit ridiculous so we’re just working out the best way to handle it.”3

The following year the US government helpfully confirmed that broadcast quotas in NZ would contravene GATS 4 .

Eventually the Clark Government did work out a way to handle it by encouraging the creation of a voluntary music quota for radio stations which worked out pretty well, and instead of a TV quota they brought in the TVNZ Charter 5. Meanwhile Australia who did not agree to the audio-visual clauses in GATS 6 still have very successful quotas for Australian music of 25% and for Australian television of 55%.

So now we know why there’s so much more American crap on telly here than even in the US. It explains why our industry is so much smaller, weaker and poorer than overseas – with less local productions, less jobs and less money for independent producers. And of course, not being able to bring in quotas meant the government had to find other, less effective ways to ensure networks broadcast quality local programmes – like the TVNZ Charter and NZ On Air.

This is a small example of how the Investor State Dispute Settlement system has already impacted upon New Zealand, and could do so again under the TPPA – not by actual legal action but by the threat of it. Back in 1994 as Jim Bolger signed GATS, we had no idea that it would drastically affect New Zealand television and the industry. Now in 2016 we face that challenge again with the TPPA.

The pro-TPPA team are solidly defending their try-line but pressure is mounting as the strength of the anti-TPPA side grows in strength. Will they sneak in a late try to derail the TPPA and change the course of history? Or will the TPPA be ratified as it stands and we will all have to wait and see how it really affects us.

1 http://musicinaustralia.org.au/index.php?title=Broadcasting_Content_Quotas_%E2%80%94_An_International_Overview

2 ‘Question of a “Local Content Quota” ‘, a legal opinion prepared for the Ministry of Commerce by Tony Small, 28 August 1998

3 NZ Herald, 10 April 2000

4 I. Bernier, Content Regulation in the Audio-Visual Sector, in: D. Geradin/D. Luff (pub.) The WTO and Global Convergence in Telecommunications and Audio-V4isual Services, 2004, p. 227

5 unesdoc.unesco.org/images/0013/001322/132262e.pdf, page 31

6 Dr Ruth Harley speech to SPADA 2014 “the Australian industry fought a trenchant battle in the GATS negotiations that saw their quota protected.”

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