The United States-Mexico-Canada Agreement: A Call for a Little Give and Take

After much Trump-inspired drama over Canada’s participation in his new North American trade accord, the United States-Mexico-Canada Agreement (USMCA) was issued on September 30, 2018 (with final ratification by the three countries still pending at this point). While there is much ado about cheese, milk, and automobiles to it, intellectual property rights also figures prominently in the agreement. Its intellectual property provisions seek “the promotion of technological innovation… to the mutual advantage of producers and users… [in] a balance of rights and obligations.” While this would seem to make it all about patent regulation, it also allows for a need to “facilitate the diffusion of information, knowledge, technology, culture and the arts… while] taking into account the interests of relevant stakeholders, including right holders, service providers, users and the public.” As the agreement is largely given to the interests of those rights holders, especially those copyright holders, I want to propose ways of striking more of a balance by addressing other relevant stakeholders, namely, the users and public.

With his typical timeliness and acuity, Michael Geist wasted little time pointing out how the “major copyright change for Canada is the [USMCA] extension in the term of copyright beyond the international standard of life of the author plus 50 years to life of the author plus 70 years.” He warns that “the cost will be significant, locking down works from the public domain for decades and potentially increasing educational costs by millions of dollars.” In a follow-up blog, he laments how this measure alone “will limit severely access to our culture.”

The U.S. set this period in a piece of legislation often referred to as the Mickey Mouse Protection Act of 1998, given the part that Disney lobbying played in adding decades to its protection of its beloved cartoon character. In the case of Canada, this two-decade extension of copyright will primarily affect schools and universities, for there will be, as Geist puts it “no new copyright expiry on works until 2040 (assuming the agreement takes effect in 2020).” This will prevent cheap, royalty-free copies of, for example, Claude Gauvreau, the Quebecois playwright, poet, and polemicist, who died in 1971, and whose works would have entered the public domain in 2022. The extension does offer an advantage to his publisher Éditions l’Hexagone (which was founded by poets), enabling it, at least in principle, to perhaps take on new poets through extended sales from its back-list.

However, in the spirit of a bilateral agreement involving give and take, as well as the agreement’s stated interest in balancing rights, it would be good to see USMCA include a recognition of relatively recent Canadian developments in fair dealing. Neither “fair dealing” nor “fair use” appear in the document. We could insist on their inclusion in ways that reflect recent Canadian court decisions that have expanded what Michael Geist has summarizes as “both the breadth of education-related purposes and how such uses should be analyzed” within theas falling within the scope of fair dealing. Such educational uses can, to return to the agreement’s wording, “facilitate the diffusion of… culture and the arts.” Encouraging such classroom use is fair can engender lifelong interests in cultural properties, at least among a few.

However, a point of greater concern, for me at least, is with the impact of this extension on Canadian research and scholarship. Among the more notable instances of USMCA delaying works entering the public domain is Marshall McLuhan (d. 1980). But what I find more troubling is the general message that the USMCA copyright extension sends to scholarly publishers. If it will little alter the value of their back-list (given limited course-pack assignment of decades-dead authors), it reinforces the proprietary exclusivity and restrictiveness of access to research and scholarship at a time when everything else about this digital era points to the value of greater openness and access for research and scholarship. Look no further than Canadian and American research funders. In policy and practice, they have agreed that open access is the best means “to promote the progress of science,” to (tirelessly) borrow from the U.S. constitutional clause that sets out the reason for granting a copyright in the form of a limited-term monopoly (or at least what were once limited term).

Yet rather than the progress of science, per se, what is more fully at stake in Canadian scholarly publishing is the progress of the social sciences and humanities (as a members’ list for the Canadian Association of Learned Publishers reveals). It is work that speaks to the nature of this country and its people. To freely circulate it globally and publicly would promote its progress, as well as recognize the public support that makes it possible.

But where does that leave Bryan Adams and Éditions l’Hexagone? The proposal that I have begun to develop to address this question, in the course of this blog (most recently) and set out in a brief submitted this summer the Committee for the Copyright Act Review, calls for formally recognizing in copyright law that research and scholarship constitute a different order of intellectual property, in terms of their financing and value, compared to, say, Adam’s “Summer of ‘69,” which I am happy to support (if only with a link).

As such, I believe that Canada should take the global lead in tailoring its copyright law to ensure that rights of both public access to this work and scholarly publisher recompense are optimally and fairly set to promote the progress of this country’s social sciences and humanities. Canada’s leadership in seeing to the inclusion of such intellectual property distinctions would nicely balance the two-decade extension of commercial publishers’ rights. Then the USMCA’s proposed changes to intellectual property can be said to live up to its objectives of being “to the mutual advantage of producers and users… [in] a balance of rights and obligations.”

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