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

• Author: John Willinsky
• Date: November 06, 2018

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...