1. Soft Law, Governance and the
Developmental State:
Assessing Creative Industries
Strategies for Developing Countries
Terry Flew
Professor of Media and Communication, Creative Industries
Faculty, Queensland University of Technology
Presentation to the Centre for Chinese Media and
Comparative Communication Research, Chinese University
of Hong Kong, 12 September, 2012
2. A convergent media policy moment in
Australia?
• Convergence Review (final report April 2012)
• ALRC, Classification—Content Regulation and
Convergent Media (final report Feb. 2012)
• Independent Media Inquiry (Finkelstein Review) – report
delivered Feb. 2012
• National Cultural Policy (forthcoming) – review of
Australia Council released May 2012
• Akin to “cultural policy moment” of early 1990s?
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3. Australian National Cultural Policy
• Discussion paper released in August 2011
• Strategic goals
1. To ensure that what the Government supports – and how this
support is provided – reflects the diversity of a 21st century
Australia, and protects and supports Indigenous culture.
2. To encourage the use of emerging technologies and new ideas
that support the development of new artworks and the creative
industries, and that enable more people to access and participate
in arts and culture.
3. To support excellence and world-class endeavour, and strengthen
the role that the arts play in telling Australian stories both here and
overseas.
4. To increase and strengthen the capacity of the arts to contribute to
our society and economy.
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4. Scope of National Cultural Policy
• Core arts – “concentric circles” model
• Creative industries – commercial media, broadcasting
and digital technologies
• Cultural heritage – GLAM sector
Craik et. al. (2000) – domains of cultural policy
– Arts and culture
– Communications and media
– Citizenship and identity
– Urban and regional culture; cultural heritage; tourism
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6. Tensions in Australian Cultural Policy
• Are the “core arts” at the centre of a national cultural
policy?
• Should economic/industry concerns be an important part
of the policy?
• Digital technologies and the participation imperative
• Concerns about the Australia Council as the primary
“gatekeeper” of arts funding – separate review of
Australia Council released May 2012
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7. The problems with “concentric circles”
• Aesthetic – circular and self-justifying arguments for the
superiority of the “high arts”
• Economic – becomes a de facto defence of existing
funding arrangements
• Equity – normative cultural policy typically aligns with
middle-class cultural consumption
• Policy – does not deal with new arguments associated
with creative industries e.g. culture as a factor in
innovation; maintains institutional status quo
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8. From Government to Governance
• Policy a gap in creative industries theories
– CI theories often tied to globalisation/cities discourses
– CI practice leaned too heaviny on “nw public
management” discourses of 1990s
• Andy Pratt – need to capture both “institutions and
agencies charged with governing (government) and the
modes and manner of governing (governance)”
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9. Dimensions of Policy
• Policy: goals and norms that inform and underpin relevant
legislation, and the intentions and instruments associated with
shaping the structure and behaviour of actors within a bounded
policy system (e.g. media policy, cultural policy);
• Regulation: operations and activities of specific agencies that have
responsibility for oversight the policy instruments that have been
developed to manage a policy system;
• Governance: totality of institutions and instruments that shape and
organize a policy system – formal and informal, national and
supranational, public and private, large-scale and smaller-scale.
• Continuum of governance strategies
– Command-and-control to market instruments
– „hard law‟ to „soft law‟
– State regulation to self-regulation and quasi-regulation
– Significance of behavioural factors (“nudge” theories – Sunstein and
Thaler)
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10. Governance and the
„New Institutional Economics‟
• “The importance of a country‟s system of governance –
its formal and informal institutions (the latter including its
culture and unwritten values) and their interaction with
the behaviour of economic and political entrepreneurs
and organizations – for the country‟s success in terms of
its long-term economic growth, enhancement of human
welfare and societal development” (Oman and Arndt,
2010: 7).
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11. Soft law
• Application of a diverse range of policy instruments in order to achieve
policy goals is the norm, as is experimentation with institutional forms;
• Government regulation is only one element of regulation: just as power
is dispersed among social institutions, the capacity to regulate exists
among non-government as well as government institutions;
• Regulation is not limited to laws and rules, but also includes market-
based instruments, regulation through contracts, licencing and
accreditation requirements, regulation through design rules, and
informational regulation including ratings and performance indicators;
• Regulation is not just restrictive or coercive, but can also be facilitating,
enabling, and can act to constitute a field – it can make things happen,
as well as stopping things from happening;
• Regulation can shape markets and create new markets, as well as
being a controlling factor on the behaviour of participants within already
existing markets.
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12. Creative Industries and Development
• UNCTAD, Creative Economy Reports (2008, 2010)
– „adequately nurtured, creativity fuels culture, infuses a
human-centred development and constitutes the key
ingredient for job creation, innovation and trade while
contributing to social inclusion, cultural diversity and
environmental sustainability‟ (UNCTAD, 2010: xix).
– „despite the richness of their cultural diversity and the
abundance of creative talent, the great majority of
developing countries are not yet fully benefiting from the
enormous potential of their creative economies to improve
development gains‟ (UNCTAD, 2008: 6).
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13. Creative Industries Policies and Industry
Policies
• Consideration of the creative economy becomes a key
element of industrial policy, whereby industrial
development strategies can exploit the potential
dynamism of the creative industries in generating growth
in output, exports and employment. A positive outlook for
industrial policy in which creativity and innovation are
important drivers of growth is well suited to the
contemporary economic conditions of globalization and
structural change (UNCTAD, 2008: 173-174).
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15. Developmental State Theory
• Lack of thinking about the state a characteristic of early
development theories
– Modernisation theories: state capacities taken as given
– Dependency theories: client states captured by foreign
interests
– Rise of East Asian economies from 1970s onwards
sharpened thinking about significance of state capacities
– Limits to globalisation theories
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16. Typology of developing nation states
(Peter Evans)
• Predatory state
• Fragmented intermediate state
• Developmental state
– Governments have sufficient power to guide investment
and set priorities
– Leadership has a coherent developmental vision
– Competent and coherent bureaucracy
– State that is both embedded in civil society, yet possesses
sufficient autonomy to work beyond shrot-term sectional
interests
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17. Paradox of creative industries in
developing countries
• Private sector is clearly the most dynamic area
• Large informal economies
• CI performance gap relative to opportunities is
substantial
• Need to the state to take the lead in “late development”
models (Gerschenkron thesis)
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18. The paradox of intellectual property
• IPRs generally seen to work for rich nation interests
against those of the poor
• Are IP laws a condition for international investment and
technology transfer?
• Sustainability of Cis in developing countries depends
upon diversification of revenue base i.e. upon
establishing ongoing market relations
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19. Conclusion
• Geographical locus of creative industries debates ahs
been shifting to developing world
• Relationship between creative industries and cultural
policy remains an ongoing issue
• Institutional conditions matter, particularly in developing
nations
• State capacities need to be exercised in a light touch/soft
law manner to “formalise” the informal creative
economies
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Editor's Notes
It is clear that technological development, increasing productivity and connecting with international markets are major priorities in the government's new National Cultural Policy. In short, the arts are now expected to become a driver of economic growth. Simon Crean says artists need to be prepared to think of themselves as an industry: "If they want their profession, their reputation, their talent and their reward to grow, I think they do need to think in those terms. It isn't just a lifestyle, it's a business," he recently told ABC Radio National.
