Barriers to Trade or Culture’s Last Stand: Copyright Issues Under NAFTA

Cmadian Review of Amem:an Studies/ Revue ca11ad1e1ml' d'hudes amh-icames Volume 27, Number 3, 1997, pp. 19-33 Barriers to Trade or Culture's Last Stand: Copyright Issues Under NAFTA Paul D. Paton Christine l. Prudham Introduction 19 The manner in which cultural issues have traditionally been discussed when considering the protection afforded by domestic legislation and international treaties m1dily leads to a division of perspective depending on which side of the border one sits: the notion of a "cultural exemption" in the North American Free Trade Agreement (NAFTA) was critical for mollifying those who saw the liberalization of trade under the Free Trade Agreement (FTA) and NAFTA as threatening the cultural sovereignty of Canadians. On the other hand, those who were concerned for the free flow of information and cultural "goods" would conceive of any such protection and "cultural exemption ,, as throwing up barriers to trade, directly counter to the spirit and intent of NAFTA. Not surprisingly, the divide falls neatly along 1rntional lines. As Graham Carr has noted, While the Canadian discourse on culture turns almost entirely on issues of national sovereignty and 1s predicated on the possibility of isolating 20 Canadian Review of American Studies Revue canad1e11ne d'etu.des anze,tcatnes culture from other policy areas by means of an exemption, much of the relevant American literature challenges the meaning of culture itself and dwells on the extent to which it can be subsumed by other political and economic realities. (1993, 205) And in an era of ever intensifying international economic integration, national efforts to protect spheres of economic and cultural activity dash with the realities of private ordering based on fundamentally different premises. Attempts to accommodate the national policy agenda within the framework of a rule-driven international treaty like NAFTA can only go so far in dealing with what may be described as "functionally driven international economic integration" (Hainsworth 1995, 590). As a purely practical matter, viewed from the day-to-day perspective of Canadian legal practice , the legislation and international treaties governing as culturally sensitive an area as copyright are tools to be used and considered when dealing with the needs and desires of clients who are integrally a part of this "functionally driven" international economy. As such, they are not necessarily either barriers to trade or bulwarks against the sublimation of Canadian cultural identity. Three issues in copyright-moral rights, the proposed protections for "performers ' rights/neighbouring rights," and parallel importation-are illustrative of this. All three issues raise important questions for those wanting to engage the disL~ourseof national cultural protection versus the free flow of international trade. Certainly the publiL~ positioning of the issues with respect to the proposals for performer's rights, for example, has been in this traditional mode. In April 1996, the new U.S. trade representative to Canada, Charlene Barshefsky (successor to Mickey Kantor) served notice that she intended to adopt a tougher stance with Canada than her predecessor on restrictions raised in the proposed amendments to the Copyright Act that would deny U.S. performers royalties collected from songs played on Canadian radio and television, and U.S. officials took the first step in calling for a sped al panel under NAFTA to deal with the issue (Morton 1996a, 3). Such a direct challenge would strongly test the value of the exemption for cultural industries in Article 2106 of NAFTA, carried over from the FTA. 1 As a practical matter, though, all three areas become part of the starting point for Patti D. Patonand Clmsti11e /. Pmdlwm / 21 pnvate negotiations, and are best not conceived in theoretical trade terms, but in a fashion which acknowledges the impact of domestic and international legal ordering in a business-sensitive fashion. This does not mean abandoning cultural sovereignty, but, in fact, more realistically addressing how theory and reality meet. The Domestic and International Legislative Framework NAFTA. Chapter 17 of NAFTA provides for the protection of intellectual property. The basic proposition is set out in Article 1701: 1. Each Party shall provide in its territory to the nationals of another Party adequate and effective protection and enforcement of intellectual property rights, while ensuring that measures to enforce intellectual...