Nervous about NAFTA & the Cancun Summit

Some of us remember when Brian Mulroney and Ronald Reagan sang “When Irish Eyes are Smiling” in 1985. Mulroney offered up compulsory licensing of pharmaceuticals and copyright retransmission royalties on a platinum platter as a prelude to the FTA negotiations. After that, there wasn’t much left for Canada to negotiate with, and it wasn’t surprising that the actual FTA was largely silent on IP. We had just given away several hundred million dollars a year out of the Canadian economy as an aperitif to the negotiations, so there wasn’t much need for the Americans to get more from us just then.

Any bureaucrat who thought this was unwise was pushed aside. It didn’t matter. There were lots of ambitious and supportive ones ready to please. This period was the beginning of the end of the expert bureaucracy. Lobbyists and Minister’s Offices were making policy. The bureaucrats were there only to implement it and make it look good.

There was a great joke, which found its way into the literature, that Canada’s final negotiating position on IP was “We’ll give you everything you want and 25% more and that’s our final offer. Take it or leave it. God dammit.” If only it were just a joke.

The Americans took it. And they made up for lost time and the lack of IP specifics in the FTA in no time with NAFTA and TRIPS, and with the many FTA’s since then and, of course, the 1996 WIPO Treaties.

Yes, Canada played a key role in all of this. If and when the full and frank history of all of this is written, I’ve very little doubt that the Mulroney Government’s apparent desire to be part of the QUAD (US, EU, Japan and Canada) and curry favour with the Americans at a very high cost were key catalytic factors in the exponential growth of the maximalist IP movement internationally and its alleged interrelationship with free trade. And to give equal credit, far from tearing up NAFTA as promised, the Liberals helped to build on it.

And indeed, free trade is a great thing for Canada and should be pursued. To the extent that they were pursuing true free trade, both Mulroney and Chrétien were doing the right thing.

But in reality, there is real free trade and then there is the American vision of free trade. Strong IP protection and free trade in the American image comprise, in reality, a cruel oxymoron.

So, it is with much trepidation that I await the outcome of the Cancun summit underway between Bush, Harper and Fox. It seems like NAFTA and déja vu all over again.

And now Mexico has really gone off the deep end with a life plus 100 year copyright term. Why Mexico would do so defies reason. Did they think of it all by themselves as an incentive to nurture, protect and prosper from their mariachi music? Or could it be that somebody gave them this idea, perhaps for some unknown consideration?

And suppose that Bush says to Harper something like, “Oh yeah, while we’re talkin’ about harmonizin’ softwood lumber, Steve, let’s all sing from the same hymn book on that other NAFTA stuff, ya know, like IP. And you all Canadians and us Americans gotta do what our friends down in Mexico did because they can’t just go backwards. Ya know, like England made nice with the Germans by goin’ to life plus 70 in 1996. Yup - life plus a 100, Steve. A nice round number. Easy to remember. Oh yeah, and while you’re at it, that WIPO stuff and our DMCA are kinda swell too. Try em. You’ll really like em. Real good for law and order, cause it stops them pirates from stealin’ other good folks’ property. All that P2P stuff just encourages porn and terrorism anyway. And then, when you’re done with this IP stuff, well maybe then we can talk some more about lumber. We always like talkin’ about lumber with Canadians, Steve. Any time. You and me are gonna be good buddies, just like me and Tony. Yep. We’ll sure talk about lumber. You’re gonna do a heck of a job.”

Prime Minister Stephen Harper is down there now with Mulroney’s former finance minister and FTA champion, now Canadian Ambassador to the US of A, Michael Wilson. Hopefully Mr. Harper’s sophistication in economics and Mr. Wilson’s hands on FTA experience and lessons learned will equip them to resist such a scenario. And hopefully, I’m just wrong about the scenario even being there.

Please Messrs. Harper and Wilson - let me be wrong about the possible American agenda in Cancun and beyond. Just this once - really and irrevocably wrong.

HPK