North American Digital Copyright, Regional Governance, and the Potential for Variation

• Author: Blayne Haggart
• Pages: 45-68

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  

North American Digital Copyright,

Regional Governance, and the

Potential for Variation

Blayne Haggart

In  , Canada, the United States, and Mex ico implemented the North

American Free Trade Agreement (NA FTA), which was designed to provide

a framework for the governance of a North American economy. One of the

most signif‌ic ant parts of the ag reement was Chapter , which dealt w ith

intellectua l property (IP) and was designed to bring Mexican IP law in line

with that of t he United States (Canadian IP law wa s already substantial ly

similar to that of the US). Referr ing to the copyr ight sections of Ch apter

, Acheson and Maule describe the treaty as a ste p in the continuing har-

monization of North American copyright law, itself embedded in a pro-

cess of g lobal harmonization spearheaded by t he  Agreement on the

Trade-Related Aspect s of Intellectua l Property (TRIPs) at the World Trade

Organization ( WTO).

Even given t he NAFTA’s ef‌fect on Mexico, and the tighter incorporation

of Mex ico and Canada into the economic orbit of the regional and global

hegemon, the t hree countries continue to possess distinc tive copyright re-

gimes.  is is all the stranger a s the United States has placed IP and copy-

right policy at the heart of its international economic agenda since the

mid-s. Instead, somewhat ironical ly, the structure of the NAFTA ha s

 Keith Acheson & Christopher J. Maule, “Copyright, Contract, the Cultural Industr ies,

and NAFTA” in Emi le G. McAnany & K enton T. Wilkinson, e ds. Mass Media and Free

Trade: NAFTA and the Cultural Industries (Austin : University of Texas Pre ss, ) .

 See the  Ag reement on Trade-Related Aspec ts of Intellectual Proper ty (TRIPs),

which paved the w ay for the creation of the World Trade Or ganization, Ch apter 

Blayne Hag gart

allowed Canada and Mexico some leeway to pursue independent copyright

policies, within a globa l copyr ight regime shaped largely by the United

States. Over f‌ifteen years after the NAFTA was concluded, domestic fac -

tors continue to be at least as signif‌icant a s US-based pressures for har -

monization in the ma king of copyright policy.

e complex nature of the North America n governance of copyright

policy ca n be seen in the processes that h ave shaped the three countries’

attempts to implement two  US-backed treaties, the World Intellec-

tual P roperty Organiz ation (WIPO) Copyr ight Treaty (WCT) and Perform-

ances and Phonograms Treaty (WPPT), jointly know n as the WIPO Internet

treaties. e most controversial part of the treaties requi res legal protec-

tion for technological protection measures (TPMs), or digital locks applied

to d igital products like MPs, ebooks, and movies, and t he devices that

read them.

e three countries, however, have t aken dramatica lly dif‌ferent paths

in their attempts to i mplement this part of the Internet Treaties. e

United States adopted a strong, “maximalist” approach to the legal protec-

tion of TPMs, outlawing t he trade in devices that ca n circumvent TPMs,

while C anada and Mex ico have yet to implement their commitments, al-

most fouteen years after the treaties were concluded. In Canada’s case,

successive governments have proposed d if‌ferent approaches to TPMs; the

current Conser vative government appea rs set on followin g the US “max-

imalist ” approach , whi le t he previou s Liber al gove rnment advo cated a

“minimal ist” approach that would have made it a crime to break a digital

lock only if it were done for purposes of infri nging the u nderlying copy-

right. In Mexico, fu ll implementation of the treaties is likely severa l years

away, though its domestic situation seems to favour the adopt ion of a US-

style approach.

While these events seem to indicate a convergence on a “North Amer-

ican” view of TPMs, from a govern ance perspective this headl ine view ob-

scures a messier rea lity: th at decisions regarding how to implement the

WIPO Internet treaties continue to be made by domestic governments and

are shaped by interests, foreign and domestic, work ing through domestic

institutions. Consequently, whether the countries move toward increasing

of the  Nort h American Free Trade A greement, Chapter  of the   United

States–Aust ralia Free Trade Ag reement, Artic le  of the  United States –Israel

Free Trade Agreement , and Article  of t he  United States–Jord an Free Trade

Agreement. O ther examples are av ailable at www.ustr.gov/trade-agreements/free-

trade-agreements.