This article is part of a series about what the renegotiation of the North American Free Trade Agreement means for the knowledge economy in Canada and for the people who turn ideas into innovations within one of the world’s largest free trade zones.
 

Lumberjacks, dairy farmers and steelworkers have all felt the heat of inflammatory rhetoric from Washington in recent months as the White House has followed through on threats to get tough on America’s trading partners, singling out industries one by one for a reckoning.

Therefore, it is understandable that there is worry in Canada’s arts scene about what the renegotiation of the North American Free Trade Agreement (NAFTA) might mean for authors and musicians, as well as in niche industries that depend for their livelihoods on legal protections such as copyright and trademarks — all of which are up for discussion during the trade talks.

For craftspeople accustomed to labouring in the shadow of a big and, at times, brash southern neighbour, some trepidation is to be expected given that the intellectual property (IP) chapter of NAFTA will naturally be opened up as the decades-old pact is renegotiated.

But the task may turn out not to be as daunting as it seems — there may even be an opportunity to extend the reach of protections for some artisans, such as sculptors in Nunavut and winemakers in British Columbia, Ontario, Quebec and Nova Scotia.

The NAFTA rules on IP were actually part of a wider movement at the time of its negotiation to include IP in trade agreements. Until then, international IP standards were negotiated in the closed circles of the IP world. A United Nations agency, the World Intellectual Property Organization (WIPO), was the leading international forum for such meetings. In 1987, however, it was decided that IP would be included in the Uruguay Round of negotiations of a new General Agreement on Tariffs and Trade. The ensuing Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was included as an annex to the Agreement establishing the World Trade Organization in 1994, would consecrate this relationship. Many rules that became the new international standards at that time had already been adopted in Canada with its implementation of NAFTA. Thus, one can say that, from a Canadian perspective, the NAFTA IP rules were a regional version of the TRIPS requirements.

What has happened since then that should require revisiting the NAFTA rules on IP? If the TRIPS agreement itself, which represents a broader international consensus, has not been modified, why would it be fit to update our IP rules within the context of a regional agreement? Actually, much has happened since the early 1990s in the world of international IP standards, with wins and losses for people in creative sectors.

Some of the developments have been incorporated in Canada, while others remain out of our reach for all kinds of reasons.

For instance, new international instruments in the area of copyright law have been negotiated under the auspices of WIPO, and some of them have been implemented in Canada. These include the 1996 WIPO treaties that updated rules for authors, performers and sound recording producers in light of the digital world and the 2013 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which have created new rights and obligations for Canadians. Canada has also been party to a trade agreement that focused only on one IP right: the 2003 Agreement Between Canada and the European Community on Trade in Wines and Spirit Drinks led to the progressive withdrawal of several exceptions that had allowed Canadian sellers of wines and spirits to make use of some well-known European names as generic descriptions for such products.

Canada also took part in what can be called failed attempts to devise new international IP standards. These are agreements that have been negotiated, but that have not been taken to their next logical step of actual implementation — at least in the countries that participated in their development. The most recent example would, of course, be the Trans-Pacific Partnership (TPP). Signed in 2016, the TPP chapter on IP was considered controversial from a Canadian perspective. The requirement to extend the term of protection for some patents whose issuance is delayed by administrative considerations was perceived as a direct attempt to extend the monopolies held by pharmaceutical companies at the expense of the market competition that would otherwise be provided by generic companies.

Another instance of international negotiations that have somehow come to naught is embodied in the Anti-Counterfeiting Trade Agreement. The public outcry over its decidedly less than transparent negotiation process led to its abandonment by the very countries that had been involved in its creation, most notably by the European Union, where it was viewed as overly intrusive into individuals’ privacy.

Even if each new agreement contains its own rules, there is an undeniable constancy in this growing pack of international standards: each in its own way builds on previously negotiated norms. The different emphases that are put on the issues countries choose to discuss and the way these countries decide to bring those issues to their next level are what make each of these agreements unique.

For craftspeople accustomed to labouring in the shadow of a big and, at times, brash southern neighbour, some trepidation is to be expected given that the IP chapter of NAFTA will naturally be opened up as the decades-old pact is renegotiated.

Let’s take an easy example: the basic copyright term of protection. Although the minimum rule in the Berne Convention for the Protection of Literary and Artistic Works (the historical backbone of international copyright rules), and in the TRIPS agreement remains “life plus 50 years,” many countries have adopted “life plus 70 years.” The European Union did so in 1993, and the United States followed suit in 1998. One could have expected the European Union to press for an increase in the Canadian term of protection in the 2016 Canada–European Union Comprehensive Economic and Trade Agreement, but this did not happen. Instead, it is in the TPP that Canada has been called upon to join many of its trading partners on this rule. Given that all three NAFTA countries took part in the TPP negotiations, it would be difficult for Canada to say now that it considers such an extension of the copyright term unacceptable.

Actually, it would be safe to presume that the contents of the TPP as a whole constitute a basis on which to renegotiate NAFTA. This could lead Canada and Mexico, both members of the 2013 Marrakesh Treaty, to exert some pressure on the United States to join that treaty.

Of all the possible issues that could be part of a new NAFTA, however, there are at least two for which it would be interesting to see Canada take the lead: geographical indications for goods tied to a local area and resale royalty rights.

Geographical indications are usually associated with “Old World” countries — as trade deals have restricted the right to use labels such as Brie, for example, to producers in the historic French region. This is why it is a little surprising to find elaborate provisions on this topic in the TPP. For winemakers in British Columbia, Ontario, Quebec and Nova Scotia, who now operate under regimes that have taken shape under the influence of previous international agreements, the protection of geographical indications has become an issue that affects interests across the country. Members of the wine-producing industry may be interested in expanding its reach more solidly throughout the continent. This is a difficult call because the United States has long been considered an opponent to such a scheme.

The case for the resale royalty right is perhaps even more elusive, since this right is not a staple of international agreements. The resale royalty right is another Old World concept; even the 1886 Berne Convention allows for a more limited recognition of its existence by its member states. Because it requires that authors of artistic works that are resold on the market share in the increased value of their works, the resale royalty right is a mechanism that is not liked by auction houses and other art dealers. Yet, one can note that its institution in Australia in 2009 was very much spurred by the desire to raise the status of Aboriginal artists.

Of course, the resale royalty right is not limited to First Nations considerations, but it could be a savvy political move for Canada to take the lead on a First Nations issue that could also reflect on a vibrant Canadian art scene. All three NAFTA countries include such populations. Since the TPP called for cooperation with respect to traditional knowledge in the field of patents, why not extend that concern to a right that helps to bridge the value gap between creators of protected works and others who benefit from the commercial transactions over these works? The entire negotiation process would benefit from being seen as having the potential to help “real people” in economic and cultural sectors that contribute to the Canadian identity.

About the Author

A graduate of McGill University (B.C.L., LL.B., LL.M.) and Université Paris II (doctorate in law) and member of the Barreau du Québec, Ysolde Gendreau has taught intellectual property law and competition law at the University of Montreal’s Faculty of Law since 1991. Her research focuses on copyright from a comparative and an international perspective. Ysolde has taught at McGill University, Universités Paris II, Paris XII, Nantes, Strasbourg III, Lyon 2 and Monash University (Australia). She has also participated in summer schools at the University of Victoria (in Victoria and Oxford) and the University of San Diego (in Florence, Italy). She is the author of numerous publications both in Canada and abroad and has edited two major works: An Emerging Intellectual Property Paradigm — Perspectives from Canada (Edward Elgar, 2008) and, together with Abraham Drassinower, Langues et droit d'auteur/Language and Copyright (Bruylant, 2009).

The opinions expressed in this article/multimedia are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors.