Why Buy American has nothing to do with Canadian copyright reform

One of the fun things about doing a dissertation on copyright is that you can’t go a day without something interesting happening (unfortunately, this is also one of the annoying things when you’re trying to finish said dissertation).

Yesterday’s news had lobbyist Scotty Greenwood, of the Washington-based Canadian American Business Council, suggesting that Canada could get around the country’s exclusion from the Buy American program, which allows U.S. governments to favour U.S. suppliers, if the Canadian government addressed U.S. concerns on copyright. Howard Knopf was quick off the bat decrying this as a bad idea.

And it could be (it would depend on the net economic and social benefits of such a deal). However, thanks to the NAFTA and the decentralized nature of the American political system, this kind of quid pro quo is highly unlikely. Conservative Industry minister spokesperson Darren Cunningham gets it exactly right when, as the Globe’s Bill Curry reports, he “notes that state and municipal governments, which are the source of the tensions, are unlikely to share Washington’s level of interest when it comes to copyright policy.”

Happily, my dissertation is examining exactly this issue, specifically why Canada and Mexico have taken over 12 years and counting to implement the WIPO Internet Treaties despite constant pressure from the United States and its content industries to do so. The United States is without question the region’s superpower. But, despite the fact that copyright has been at the top of the American trade agenda throughout the Bush Jr. and now Obama regimes, Canada has proposed (and failed to pass, thanks to minority government-related election calls), first a 2005 bill (legislative summary) that didn’t do what the U.S. wanted, and then a 2008 bill (legislative summary) would have given the U.S. much, but not all, of what it wanted. (Mexico’s experience, which I’m currently researching, is somewhat different.)

While lobbyists like Greenwood can suggest that Canadian movement on issue X will yield American movement on issue Y (what political scientists call “linkage”), it’s actually really hard to link issues in Canada-U.S. relations, for two reasons.

First, as Cunningham suggests, unlike Canada’s, the U.S. political system is not concentrated in one person. Stephen Harper can make credible promises to link unrelated issues because he, for all intents and purposes, controls Parliament. Barack Obama can’t deliver in the same way, because he has to deal with a Congress that he does not control and whose interests may differ from his. The politics are much more complicated. A basic point, but one that politicians, journalists, lobbyists and we political scientists don’t always remember.

Second, there is currently no regional institutional framework to allow for the easy linking of issues. This is where the NAFTA comes in. The NAFTA sets baselines and rules governing North American economic activity, but it contains no way to modify (easily) these rules, meaning they’re essentially stuck in amber.

There’s a reason why the United States has incorporated successfully its demands on copyright protection into its trade agreements: they’re trading something the other guy wants (access to the U.S. market) for something that the U.S. wants (U.S.-style copyright laws). But because Canada and Mexico already have guaranteed access to the U.S. market, thanks to the NAFTA, the U.S. has relatively little to offer its trading partners. Somewhat ironically, the NAFTA has provided North America’s juniour partners with a not-insignificant degree of policy autonomy.

(Given the reality that copyright laws are changed regularly in response to technological developments, the American strategy of using trade agreements, which can’t be modified easily, to set other countries’ copyright laws may backfire in the long run.

On another point, the lack of issue linkage in the current Anti-Counterfeiting Trade Agreement is one of the more puzzling things about those negotiations. Given the secrecy surrounding the talks, it’s unclear even why countries like Canada are negotiating this agreement. But that’s a topic for another day.)

While the second point is a bit underappreciated (though Stephen Clarkson hypothesized it a few years ago, in a paper that kickstarted my own thinking on the issue), the first point is a cornerstone of the study of Canada-U.S. relations, since at least the publication of Keohane and Nye’s Power and Interdependence in the 1970s.

I’m not saying that linkage is either impossible or always undesirable. The moribund Security and Prosperity Partnership of North America provided a forum that allowed for policy linkages and may have provided an opportunity for the United States to exert pressure in 2008 to get what it wanted in what eventually became Bill C-61. Canada and Mexico may decide to implement U.S.-style copyright policies.

The two governments may attempt to link issues. But absent some kind of new regional institutional structure, or a new round of free-trade talks, any kind of Buy American-copyright linkage has the odds stacked against it.