Michael Geist:
This is Law Bytes, a podcast with Michael Geist.
CBC News:
Signed sealed and now delivered to the House of Commons. Just last hour the Federal Government tabled a bill to implement the new NAFTA a deal that Canada the US and Mexico reached six months ago after 15 months of negotiations.
Justin Trudeau:
Canada the US and Mexico are at our most efficient most secure and most profitable. When we work together. And it’s about time we got back to that way of thinking. Mr Speaker, the new NAFTA will secure access to a trading zone that accounts for more than a quarter of the global economy. And it’s now time for the members of this House to ratify it.
Donald Trump:
Likewise it will be the most advanced trade deal in the world with ambitious provisions on the digital economy, patents very important.
Michael Geist:
The new NAFTA, dubbed the USMCA or CUSMA depending on where you live, took a significant step forward recently with the introduction of Canadian legislation designed to ratify the treaty. Bill C-100 comes near the end of the legislative session and just months before a federal election but the government may still work to rush it through the parliamentary process. The economic implications of the agreement are enormous. As Professor Myra Tawfik, my guest on this week’s podcast has noted it, touches on everything from cows to cars to copyright. Professor Tawfik is a leading copyright expert at the University of Windsor and a senior fellow with CIGI, the Centre for International Governance Innovation. She joined me to talk about Canada’s long standing history of facing external pressure on copyright, the role that trade negotiations now play with that pressure, and the implications of the USMCA.
Michael Geist:
Mayra thanks so much for joining me on the podcast.
Myra Tawfik:
Thank you for having me it’s a pleasure to be here.
Michael Geist:
Well it’s great to have you and it comes at a time where there is a lot certainly taking place from an intellectual property perspective. We’ve had just this week as we’re recording this another copyright review which will have significant consequences for where things go but but even more there is now a bill at the house that deals with the implementation and ratification of the new NAFTA, the USMCA, which has significant implications for intellectual property as well. And so I thought we could focus a bit on what’s in the bill but even more the very issue that that IP becomes an important part of these trade deals which we can take people by surprise. So why don’t we start there.
Myra Tawfik:
IP hasn’t always been a big part of trade deals. I mean it was NAFTA actually that the first NAFTA, the original NAFTA that introduced the concept of having intellectual property rights as part of international free trade agreements.
Bill Clinton:
I’d also like to welcome here the representatives from Mexico and Canada and tell them they are in fact welcome here. They are our partners in the future that we are trying to make together.
Myra Tawfik:
And that was a significant shift. So we’re talking sort of what are we talking about sort of 25, 30 years ago where the the U.S. particularly started to think about ways in which it could maintain and grow its advantage in the international trade landscape and IP of course in the U.S. is sort of a huge developer and exporter of intellectual property. And I think that’s has had a fundamental shift in the way intellectual property rights have been viewed both domestically and within the international framework. So NAFTA was the first to do it. So it’s a fairly you know in the grand scheme of things it’s it’s not that that long ago. But from NAFTA to the WTO TRIPS and onward to every international trade negotiation and trade agreement since then there has been an intellectual property code in most of them.
Michael Geist:
Ok. And when you talk about international code and these trade agreements I assume we’re talking about everything from the new Canada- EU trade agreement, the TPP the Asia trade agreement, this isn’t just a U.S. Canada Mexico thing. This is global in scope.
Myra Tawfik:
It is global in scope. It is although if you if you look at some of the bilateral trade agreements that Canada has entered into since NAFTA and TRIPS sort of you know a number of them with some some of the South American countries et cetera we you know we we haven’t necessarily put intellectual property in those trade agreements which suggests to me sort of you know Canada’s you know Canada’s perspective within this context that IP rights or IP codes within trade agreements may not necessarily be to our priority of ours but yeah absolutely. So at particularly every trade agreement in which the U.S. is involved or the European Union you’ll find you know these intellectual property provisions or intellectual property code name calling codes but sort of you know chapters that deal specifically with the various forms of intellectual property rights. And what we’ve seen over the years from this from NAFTA as the beginning adapted WTO TRIPS is an increasing kind of attention to raising and enhancing and strengthening the intellectual property rights with each trade iteration of these new trade agreements.
Michael Geist:
So that’s interesting because it suggests that Canada’s participation in these trade negotiations and agreements and then ultimately with these IP chapters isn’t something that’s necessarily a priority for the country if you take a look at the recent Israel agreement, the South Korea agreement or some of the other agreements. It’s not Canada that is pushing this you’re suggesting this is this is coming in this case from the United States.
Myra Tawfik:
Yeah I think that’s correct. I mean you know I think you know I do. If you look at kind of you know over the long term the centuries you know at least a couple of centuries of Canadian involvement in international intellectual property rights especially the international copyright space but generally, we’ve always been somewhat sort of ambivalent about you know where where we should place ourselves as a middle power, generally an importer of intellectual property so it’ll always it’s always going to cost us more sort of to buy the IP from elsewhere and obviously the US looms large not only kind of in you know in the practical realities of of us engaging with US in in you know imports and exports of you know copyright works et cetera but also just sort of in terms of you know a dominance you know sort of thing that this sort of there’s a you know sort of a psychology around our relationship with the United States that you know that you can trace that way back you know to the 19th century. So you know it’s not it is it is always sort of this this you know ambivalence about what our what our place should be within these these intellectual property international intellectual property system. And it is usually the U.S. that looms large kind of in. In determining our approach to to a great extent not totally but to a great extent.
Michael Geist:
You’re one of the leading copyright historians in the country can I want to come to today. But you know I can’t help it but ask you ask you to sort of expand a bit on sort of the history side and since we’ve seen this for decades if not centuries in terms of U.S. pressure on Canada.
Myra Tawfik:
Yeah. No I know we want to talk about today but I do think I mean one of the things about looking back in time is you start to see a picture that is sort of more kind of longitudinal and evolves over over centuries in our case. But you know there there was one of the most poignant things about doing copyright history is to realize that there was probably a there was only about a decade and this was prior to confederation where Canada or Canadian colonies at the time actually had autonomy to determine their own sort of intellectual property laws to do the course and the policy underlying the intellectual property laws and by the mid 19th century the U.S. had become sort of a very important force in you know with with Britain. I mean was still a British colony at the time. But the point is it sort of became it started to assert its own economic and cultural interests in a global space by the the middle of the 19th century. And we were caught up in that.
Myra Tawfik:
And so every time sort of the US sort of had to add up a dispute with UK over the imports of British copyright works etc. We got caught in the crossfire because our market became a bargaining chip for the British for example to try and enter into some kind of compromise agreement with the United States and so I know it’s there I do want to get it is too much to get into the detail but the point is that you know with every international trade agreement including the Berne Convention I’m not trade but the copyright agreement the Berne Convention we’ve always been sort of there’s been this ambivalence because we can’t detach ourselves from the reality that we love to consume American entertainment and other products sort of in the copyright space but we also don’t we lose control then autonomy over how to determine our own policy interests and therefore how to chart our legislative course in a way that matches those. And what we’ve tended to do is adopt multilateralism I mean that somehow that that there’s strength in numbers and that we should sort of be you know good international citizens and that we’re better off kind of in a regional or multilateral agreements than on our own. And I think that’s generally been a good approach for us but it does mean that particularly on the internal intellectual property front we are often dictated to by you know by others whose standards are by definition you know necessarily higher than ours, because they are the ones that are producing the intellectual property that we’re consuming and I. And that has been a pattern sort of you know I mean I say I won’t go into the detail it’s fantastic history but it it has been our pattern and I don’t know. I mean I think work arriving at a moment where we are actually engaging. I see it with greater maturity in these international negotiations. I mean there are some of some parts of Canada U.S. Mexico agreement that that are actually sort of do you know take into account Canadian interests the cultural industry’s exemption which we had in the first NAFTA, the notice and notice kind of preservation of notice and notice, I mean those are things that you could see sort of Canada’s identity or autonomy coming through. But on the whole every time we’ve entered into any of these international trade agreements it’s because someone else and usually the United States has wanted to impose higher standards because it serves their interests. So we’ve often adopted sort of international principles or rules that serve the interests of other countries rather than first and foremost our own and that on that point that has been our history for a long long time.
Michael Geist:
Amazing to think that there’s nothing new here in the sense of facing pressure from the United States and ultimately as part of that broader trading relationship being willing to give on the intellectual property side presumably in the expectation that there were gains elsewhere.
Myra Tawfik:
Right. That’s right.
Michael Geist:
So I do want to touch on some of the places where we may have shown that greater maturity or willingness to stand up for ourselves. But I guess first let’s just make sure people are familiar with the landscape here. The USMCA or CUSMCA depending on which country you and what acronym you want to use. There is of course still some doubt as to whether or not we’ll get ratified it is rather old disorienting to the extent to which you had the U.S. vice president promoting the trade agreement in Canada at the same time that Trump was threatening new tariffs on Mexico suggests that this may not go anywhere. But what if it does Canada clearly wants to be ready. They’ve now put forward a bill that allows them to do that for someone new to the issue thinking about intellectual property. What’s the what’s the what’s the biggest issue in there in that bill do you think?
Myra Tawfik:
I think that while the biggest issue again because you know my my bias is towards copyright is is sort of the term what we call the term extension so the the the obligation that Canada will have to extend the term of copyright protection what from what it currently is which is life as the creator of the copyright work plus 50 years after the death of that creator to to to move to move it or increase the term by 20 years to a life plus 70 duration of protection which is also the norm increasingly becoming the norm in in key international and key you know partners, international partners or an in in key jurisdictions like the European Union, the United States has a similar kind of you obviously as a life plus 70 term, Mexico I think still has a life plus a hundred term. But we have maintained and been very strong on maintaining our view that we should only abide by what we’re the minimum term that we’re required to do to to adhere to under the terms of the WTO TRIPS and the Berne Convention which is a life plus 50. So this will be significant.
Michael Geist:
Yes there’s a change. It will. Thank you for that. It will be so just so we’re clear though Canada does currently meet its international obligations with the life plus 50.
Myra Tawfik:
Absolutely. Canada has always met. I mean that’s what sort of Canada’s always met its international obligations. You know again if you go back over the parliamentary debates around Berne and or in and early in the 20th century we’ve always been very conscious and conscientious about meeting our international obligations. So there’s no doubt about that where where the quibbling is is in. You know that there is wiggle wiggle room in terms of these international treaties and there should be and some sort of other countries insist that we actually should be adhering to higher standards but we are we are adhering to our international commitments. Absolutely.
Michael Geist:
Okay. What’s your argument then for you know that I know some of the answers, but I’d love to hear your perspective on what are some of the arguments then to extend copyright term if as a starting point we meet the international standard and if copyright is about creating incentives for creativity along with access. If we’re going to in a sense gift an extra two decades of protection to works that have been already created which is there a strong policy argument for extending term beyond this is the pressure we’re facing from the United States.
Myra Tawfik:
Well I mean I see that the sort of the most kind of I suppose sort of benign or neutral argument is that you know the life plus 50 term sort of originated you know in the early late 19th early 20th century and that at the time it represented sort of the life of the author plus two generations basically as of heirs or you know estate that could could claim the copyright. In other words there was the sense that you know because the that the author the creator has created something sort of that’s worth you know worthy or worth something to posterity that the heirs should be able to claim after the author passes away. And so you’ve got sort of that that 50 50 as two generations and so that you know, well people are living longer and therefore it’s only natural to extend the term I mean it’s just a sort of a no brainer kind of thing you extend the term by 20 years because people are living longer so you’re you’re adhering to the same principle and you know recognizing the reality that you know and in our in our sort of century we’re living longer. And so what could be you know a problem with that.
Myra Tawfik:
The other argument of course is because of the you know the international dynamic I mean one of the reasons or one of the pressures that comes from increasing intellectual property standards globally is that Canadian creators et cetera will start to realize or will feel that they’re actually disadvantaged or that you know the Canadian market is disadvantaged because there isn’t this sort of harmonization of the term by 20 years. And so they would put pressure again on on on Canada to meet what is now at you know notionally the claim is now becoming the international standard. And so you know I mean I find it I I. Obviously biased. I mean I don’t I don’t think first of all intellectual property rights were never intended to unlimited rights. I mean they’re they are limited for particular public policy purposes. And so the idea of continuously Oh it’s just 20 years it’s just another 10 or so people are living longer whatever it doesn’t persuade me that this is something that is in the best interests of Canadians as a whole. And Canada sort of as a country. So I find it hard. I mean you know those are the arguments that are put forward. But I think no matter what what you do any extension of copyright term you know it harms kind of the ability for people to access and work with the sort of ah ah you know cultural literary but you know sort of the also sometimes very technical practical software for example is a copyright work but to to enable us to engage with those works once a reasonable period has expired where the copyright holder has had the benefit of being able to exploit commercially the there there create the results of their creativity.
Myra Tawfik:
So know I don’t if I answered the question but it’s hard. I find it difficult because I I feel fundamentally that that copyright should be limited in duration and that you know the argument that it’s just another 20 years because people are living longer doesn’t persuade me that it’s always necessarily a good thing to continue to heighten or strengthen copyright rights.
Michael Geist:
So there and there is certainly is clear opposition to this notwithstanding that the Canadian Heritage Committee had to say in its review of some copyright and remuneration issues when it didn’t hear from anyone that was opposed to it it’s quite clear and we saw it in the other in the main copyright review that there is. And you’ve articulated the arguments for but also some of the costs because there are costs associated with it. So Canada has resisted this for some time both in terms of sticking to what they’ve done as well as taking it off the table in some other agreements for no mistake and including for example the CPTPP.
Myra Tawfik:
That’s right. I mean I think the CPTPP is a really good example of where Canada positions itself in the international trade and IP landscape because if you look at sort of the original TPP when the U.S. was a participant you see a lot of the same kinds of provisions that we’re seeing and sort of NAFTA 2.0. But when the U.S. withdrew the agreement that ultimately signed if Canada participated in contains some suspensions of key intellectual property provisions which you know in other words again that the duration of copyright this extension of term was not included as part of an obligation or at least suspended. And in terms of an obligation under the CPTPP. So I think you get an indication there of where Canada’s feels more comfortable developing or whether increasing or remaining at you know its life the life plus 50 for example level which he has had is has been sort of the standard for for a long long time. So yeah I think there’s there’s there’s there’s evidence there of Canada’s position on these things and that’s a good example of Canada taking more of a lead lead once the U.S. withdrew to be it being able to carve out something that is maybe closer to where Canadian policymakers think the international IP system should the direction it should be taking.
Michael Geist:
It strikes me that that we’ve seen an attempt to perhaps continue that even within this USMCA because in this bill I think most expected to see an extension in the term of copyright but we didn’t get it immediate. No no. The there is a transition period, two and a half year transitional period, and it would appear that Canada is intent on using that transition period to delay implementing an extension and perhaps thinking about alternative ways to extend term of copyright if that’s an ultimate requirement. What do you think they might have in mind and what’s this delay in a sense about.
Myra Tawfik:
Well I think I mean you’ve obviously commented on this and I think this is a really good example of Canada sort of looking for you know being part of the international community but looking for Canadian made or solutions that actually work within or that that that that that is consistent with you know Canada’s vision or understanding of its of its role in the international intellectual property space because it really is sort of this this two and a half years to consult to sort of figure out ways of compromise I think is is really genuinely you know an assertion of autonomy in these negotiations and if there’s any indication I mean if you look at the Standing Committee on Industry Science and Technology there report that just was it was just released. They make a suggestion about how we might address the last 20 years of our life moving to life plus 70 by imposing a formal registration requirement for those last 20 years and any infringements. So if you have sort of if if copyright is infringed in that those last 20 years only the registered only you could only sort of pursue for infringement if you’ve registered your right. So life plus 50 and then a 20 year period where we are introducing a formality or that’s the recommendation of the INDU committee a registration formality.
Michael Geist:
Right. It’s a really interesting approach.
Myra Tawfik:
So it really is.
Michael Geist:
For those that aren’t familiar with the issue around formalities you’re not permitted to have those formalities for the base requirement internationally. So that’s the life plus 50. And so what it appears there may be a possibility of doing it well we’ve even seen a recommendation now to do is to simply say we’ll provide life plus 50 plus 20 as opposed to a pure life plus 70 and that extra 20 is there if you want it but I assume that or presume that that many makes. By that point in time say we’re comfortable with this being in the public domain which will allow us to allow those copyright owners who want to ensure that they’ve got copyright protection to continue to have it for that full period. But those that by that point in time aren’t interested anymore to ensure that those works flow into the public domain.
Myra Tawfik:
Absolutely I mean I think what it does is it creates certainty for those last 20 years for like you said as you say. I mean for those either the work. I mean there’s no one you know sadly no one cares about the work anymore in that that after that length of time or you know the the the copyright holders are happy with having it fall into the public domain. That’s that’s great. But only those who have made then a formal and have identified themselves through a registration formality so there’ll be a registry that you could go and check and determine whether or not they’ve made they’re maintaining their rights. I mean that creates certainty in ways that actually in the past the registry you know before has explained copyright you don’t have to register your right there are no formalities to securing the right. There used to be way back when and that you know there’s sort of we gave up. I mean that creates certainty. Those records obviously create certainty and there were very sound policy reasons for moving away from that but reintroducing this in in the last 20 years I think is a really innovative creative compromise to addressing some of the problems about the length the duration of copyright. You know in relation to for example sort of orphan works which are works in which the author can no longer be found to secure permissions. I mean there are all kinds of things that happen if you think about you know the lifespan of of of us an author or creator and then 70 years after the author’s death. You’re talking about a long period for there’s you know lost the loss of living memory here at least there would be a tangible record of the individuals maintaining their their copyright right. So I actually think that’s a really creative and effective compromise that you know I’m I really it’s really quite interesting that it came out in the standing committee’s report.
Michael Geist:
Right. It’s exciting to see that happening both at the policy development level through the committee and then potentially at the government level as well given that they have not put it into this bill. There’s this is obviously not the only provision in there. Are there other things people should be paying attention to on the IP side within Bill C-100 and this implementation.
CNBC:
Now one of the main goals for renegotiating NAFTA was to create a more modern agreement. The current deal took effect about 25 years ago before the advent of the digital economy. Now there’s a framework for dealing with intellectual property. Pharmaceutical companies will also get exclusive marketing rights on biologic drugs for 10 years.
Myra Tawfik:
Well one of the provisions that’s been controversial has been this issue regarding patents and biologics. And I must admit I’m not you know sort of as you know familiar with the technical side of it but it relates to some forms of sort of pharmaceuticals and some of the arguments. So we have currently have an eight year sort of protection sort of added protection or additional protection for that form of patented invention and the obligation for us is to move to 10 years and the two year I mean it may seem not not seem like a long time two years but two years and sort of. You know when when you’re dealing with you know very expensive pharmaceuticals where we want to introduce new medicines to you know for public health reasons et cetera that these these this added two years will create a burden in terms of the fear is that it will raise the costs which are the costs of drugs for Canadians with which are already quite high. We’re paying a lot for our pharmaceutical medicines. So that’s one that is worth watching because there has been a lot of criticism about that again the idea that that the enhancing intellectual property rights, So two year term on biologics or life plus 70 in copyright I mean every time you you enhance kind of the right to give more rights to the to the the right holder there’s there’s a cost associated with that and obviously those who those countries that are strong producers of those outputs or outcomes or whatever are the ones in there it’s in their best interest to ensure that they can get us as much protection for as long as possible. And of course the corollary is for those countries like Canada that cannot compete and cannot produce to the same extent. It means that there is a cost to us and the cost here is sensitive obviously because a lot of we’re talking about in many instances obviously sort of important pharmaceutical products.
Myra Tawfik:
So that’s one that I think you know needs to be looked at which has raised some criticism or discussion. The the other is there’s some, you know there’s I mean the intellectual property provisions obviously cover every form of intellectual property so copyright patents trademarks trade secrets industrial designs. I mean it covers the range and provides enhancements and you know tweaks and sometimes significant changes to all of the forms of intellectual property. The other one that’s been flagged as an issue for Canada relates to what we call trade secrets or the law of confidential information where the U.S. has been pushing it.
Myra Tawfik:
And if you read kind of the you you you the the various reports issued by the U.S. trade representative sort of on it’s intellectual property assessments annually. It’s concerned that countries don’t provide enough criminal sanctions for industrial espionage basically or misappropriation of trade secrets with intent or you know that we’re not we’re not aggressive enough and that there are provisions in the Canada U.S. Mexico agreement that that deal with you know enhancing the criminal side of our existing laws trade secret laws which are provincial actually. So it does create kind of another layer in terms of constitutional jurisdiction that we need to pay attention to. But again the arguing some argue that we already do provide sufficient we already meet our obligations under you know NAFTA and therefore won’t require any significant changes. But I think there’s sort of an ethos behind what you the US kind of criminalizing appropriation of certain kinds of trade secrets that you know we need I think to watch for even if we do in principle abide by the the the the rules in the NAFTA 2.0 agreement. I think that there’s there’s good it’s opening the door to further persuasion negotiation et cetera around us developing a much more robust or aggressive criminal range of criminal kind of remedies or criminalizing certain aspects of of trade secret law that we don’t currently do.
Michael Geist:
So we’ve got expansion of trade secrets including criminalization related concerns, we’ve got higher costs on the patent side, higher costs on the copyright side. Why don’t we wrap by just asking is this the right place for these kinds of issues. Each one on there would be a major policy issue that one would like to see debated. Is there a concern – rhetorical question. Yeah shouldn’t there be a concern that these kinds of big policy issues with real costs run the risk of getting lost amidst massive trade deals that have implications for every aspect of our economy.
Myra Tawfik:
That’s absolutely right. I mean I’ve never. I mean once we we agreed and once the international community decided that intellectual property rights should be contained or these chapters should be contained in international trade agreements you know we have been unable because what they do of course is they’re inflexible. There are kind of you know you have to buy into the whole agreement not just you can’t pick and choose. So you can’t say I don’t like the intellectual property chapter so I’m not going to agree to that but I will agree to the chapter on that dairy or whatever it might be. So we have to accept everything within the agreement which means it’s sort of horse trading you’re going to give and take in certain areas the policy these fundamental policy issues around each one of intellectual property and how they they they land a practice in Canada and what kinds of you know what’s the global public interest in relation to intellectual property rights get lost.
Myra Tawfik:
And so if we could turn back the clock and go back to the time where we had separate international treaties or international agreements on each form of intellectual property. So the Berne Convention that deals with copyright, the Paris convention that deals with you know patents trademarks industrial industrial property, I mean you’ve got all of those international treaties that dealt specifically with each form of IP and address the policy concerns you know in a in a multilateral sense. Now we’ve got we’re trying to do all of our intellectual property within the rules and constraints of an international trade agreement which is a fundamentally different sort of beast basically settlement different. Agreed. The nature of it is fundamentally different from the nature of standalone intellectual property agreements. So absolutely I think where I think each. Each time each time we enter into these agreements each time we deal with enhanced IP rights globally we lose flexibility and I think we do need to ask ourselves this is not just a Canadian issue. I mean it is an international issue. Is it necessarily in this global public interest that we should continuously be engaging in in with IP in the International Trade Forum and with a view always to increasing and enhancing the rights. There is a point at which it’s strong you know sort of there. There will be a tipping point if we haven’t reached it already where you know intellectual property rights actually hinder impede innovation creativity and we will be you know all of us globally the much poorer for it. So I agree I think I think we need the policy issues that we need to be addressing are not being dealt with in the international trade format yet that’s become the primary forum for dealing with international IP. You know since since NAFTA since the first NAFTA.
Michael Geist:
I just just a riff on a line that you used when we reached the agreement. That’s all happening from a Canadian context where we are prioritizing economic issues like cows and cars.
Myra Tawfik:
Yeah you’re right. Yeah yeah I think it should be the three C’s cows cars and copyrights. We can’t lose sight of of the importance especially near global innovation economy of our our need to start to understand how to play in the international spaces in intellectual property. So we have cars cows and copyright.
Michael Geist:
That’s a great way to end it. Myra thanks so much for joining me on the podcast.
Myra Tawfik:
Thanks Michael.
Michael Geist:
That’s the Law Bytes podcast for this week. If you have comments suggestions or other feedback, write to lawbytes.com. That’s lawbytes at pobox.com. Follow the podcast on Twitter at @lawbytespod or Michael Geist at @mgeist. You can download the latest episodes from my Web site at Michaelgeist.ca or subscribe via RSS, at Apple podcast, Google, or Spotify. The LawBytes Podcast is produced by Gerardo LeBron Laboy. Music by the Laboy brothers: Gerardo and Jose LeBron Laboy. Credit information for the clips featured in this podcast can be found in the show notes for this episode at Michaelgeist.ca. I’m Michael Geist. Thanks for listening and see you next time.
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