OTTAWA – Canada needs to put everything we gave away to the United States over the past four decades of trade negotiations back on the table!
It seems like just the other day — although in fact it was 70 months ago — that Donald Trump signed the Canada-United States-Mexico Agreement, supposedly guaranteeing that Canadian goods sold in the U.S.A. would not face tariffs.
But since the start of his second term, The Donald has made it clear that CUSMA — or in fact any treaty with the United States — isn’t worth the paper it’s printed on.
So as we consider the appropriate national response to the U.S. tariff threat, we should look at every concession we gave the United States in our past round of trade negotiations.
One of the biggest giveaways was in the regulation of intellectual property. Canada made enormous concessions on copyright, patents, and trademarks. When the United States and Canada started their negotiations, the U.S. Trade Representative even spelled out that more restrictive copyright was one of the American side’s biggest objectives because that would advance U.S. interests.
Copyright is not a natural right. It’s part of Canada’s cultural policy and designed to incentivize the creation of new works by and for Canadians, and for the world.
By granting a limited monopoly for a specified amount of time, copyright law makes it economically viable for artists, writers – and the media conglomerates that control and distribute their work – to invest in creative output.
After the copyright term is over, the works enter the public domain and can be used by everyone without the need to pay or ask permission.
The historic treaty that governs copyright is the 1886 Berne Convention for the Protection of Literary and Artistic Works. It created a reciprocal framework between countries in which all signatories agreed to respect copyright law drafted in other countries.
The duration of copyright assigned to works has been lengthened by some signatories over time (usually under pressure from the United States) but the base term in the treaty was set at life of the author plus 50 years.
The economic half-life of creative works — particularly books — is shorter than most people imagine. Almost all book sales happen in the first five years following their publication. So long copyright terms do not benefit the authors of most books.
The main beneficiaries are large media conglomerates. Naturally, these conglomerates — which are key to the modern U.S. economy — have powerful lobbying groups that advocate for longer copyright terms. By extending the duration of copyright, these companies can ensure the few items of intellectual property that maintain economic relevance remain profitable longer – for them.
In 1998, U.S. politicians enacted the “Mickey Mouse Protection Act,” which added two decades onto their copyright terms, extending copyright protection to the life of the author plus 70 years. Subsequently, they launched a full-court press to strongarm other countries into following suit. Ironically, in the 19th Century the United States had a 14-year copyright term, and it was called a pirate nation because critics claimed American publishers stole copyright works from other countries.
So, to be clear, when it suited them, U.S. legislators only allowed copyright on books for 14 years after the year of publication.
Until the signing of CUSMA, Canada maintained the Berne Convention’s floor for copyright term length. But in 2019, one of the sticking points in the treaty was that Donald Trump wanted to force Canada to adopt a longer copyright term.
Instead of fighting to remove cultural policy issues from a trade agreement, Canada caved and changed its laws in 2022 in order to avoid – what else? – threatened tariffs. The country gave in to Trump’s bullying, and lost.
Let’s be clear here: no corporations on earth profit more from excessively long copyright terms than conglomerates based in the United States. Sales of U.S. copyright products in overseas markets amounted to $230.3 billion in 2021. This includes everything from pharmaceuticals to the output of Hollywood’s nostalgia-industrial complex.
Among other things, CUSMA meant that in Canada the character of Tony Stark (AKA Iron Man) will remain the exclusive property of Marvel Comics until 2058, rather than entering the public domain in 2038. J.R.R. Tolkien’s Lord of the Rings novels would have entered the public domain in Canada last year, but instead we will have to wait until 2044. The Jeeves and Wooster novels of P.G. Wodehouse will remain in copyright until 2046. There are many more, of course.
Because of these excessively long copyright terms, Canadians are not able to publish stories about fictional characters who long ago entered our cultural milieu. As a result, a Canadian couldn’t publish something like The Last Ringbearer, the 1999 fantasy by Russian author Kirill Yeskov, that retells Tolkien’s Lord of the Rings from the perspective of the losers. To wit: Mordor, “the heart of the only civilization in Middle-earth to bet on rational knowledge and bravely pitch its barely adolescent technology against ancient magic.”
When stories such as The Lord of the Rings enter the public domain, they become freely accessible for reuse, fostering creativity, innovation, and scholarship. Artists, educators, and businesses can build upon these works without restrictions, promoting diversity, and accessibility. There may even be the occasional riposte, like Professor Yeskov’s sly dig at American exceptionalism.
The public domain is in the public good.
Fundamentally, cultural policy should not be negotiated in a trade agreement. But if we’re having to relitigate the discussions of CUSMA, then we should slap it all back on the table …and more.
In fact, we should go back to the NAFTA negotiations, which also involved intellectual property policies – though in that instance it was Canadian patent laws, rather than copyright that suffered. (Copyright covers artistic, literary, or intellectually created works, while patents cover technical inventions such as drugs, machinery, and computers).
When NAFTA was signed in 1992, one of the key concessions that George Bush Sr. extracted from then-prime minister Brian Mulroney was to ensure Canadian patent laws were more patent-holder friendly. Because of NAFTA and the preceding Canada-U.S. trade agreement, our government extended patent protection to pharmaceutical products and restricted the possibilities for the government to provide licences to manufacturers of generic drugs. It should be noted that firms based in the United States hold four times as much value in pharmaceutical patents as those based in Canada.
If the United States wants to play economic hardball, we can too.
We can start by reducing our copyright term back to the pre-CUSMA life-plus-50-years duration. Then, perhaps take a look at pharmaceutical patent terms and policy.
If Donald Trump’s aggression is to be defeated, we need to use every tool in our economic arsenal.
NOTE: As readers will see from the placeline on this story, I am in Ottawa on business not directly related to this blog. As a result, the number of posts I publish is likely to be lower this week than normal. I expect to return to my usual frenetic pace of publishing, as one reader recently described it, next week. DJC
CUSMA since we are soon to enter that simulation where this weird trilateral trade deal doesn’t exist, it’s safe to say that soon all the conventions Canada was forced into, covering pretty much everything, will soon be null and void. Personally, after Brexit, Canada should have rammed into the UK’s former position and moved away from the Excited States. It now appears that the wheels are at last turning. Canada will move itself closer to the EU, as well as other partners. Many agreements with the US have fallen into question.
Should Canada reconsider the F-35 fighter contract now that it looks like the US (not to mention Boeing) are headed for the funny farm? Personally, Euro aircraft have a definite Je ne c’est quoi about them. The Eurofighter is a work of aerospace art, the French Rafale is an elegant killer, and the SAAB Grippen has that Swedish utilitarism that you will never find in anything from the US.
Going even further, the notion that I may soon be able to enjoy an abundance of wines from the EU fills my heart with delight. And real French beer — yes, the French really do make excellent beers.
I’d say that the feces-throwing orange shite gibbon in the White House may have done Canada and Canadians an invaluable service. He showed the real side of the American psyche, and it is psychotic.
On the matter of Canadians who want to be Americans, we know exactly who they are, because they never shut up about their Yankee-Doodle fetishes. I purpose binding their hands and feet and throwing them out of a plane onto the other side of 49th.
From an essay / speech by Cory Doctorow (https://pluralistic.net/2025/02/26/ursula-franklin/)
“Back in 2010, two ministers from Stephen Harper’s government decided to copy-paste America’s Digital Millennium Copyright Act into Canadian law. …[a] proposal to make it illegal to reverse engineer and modify services, products and devices”
Thus letting “American tech giants corner digital markets, forcing us to buy our apps and games from American app stores”. ”
” these laws are part of our trade agreement with the USA. This [was] a law needed to maintain tariff-free access to US markets.”
Do you want to strike back at Trump’s tariffs? Go after his techno-bros finders.
“Abolish the Canadian laws that protect US Big Tech companies from Canadian competition. Make it legal to reverse-engineer, jailbreak and modify American technology products and services” provided by Facebook, Tesla, Apple etc.
By repealing this law we put in place under Harper, Canada could set up a market to sell “jailbreaking software and access to Canadian app stores, for every mobile device and games console to everyone in the world”
“That’s how you win a trade-war”.
I’m from Upper Canada—well, at least my forebears were—and I remember driving from “the sticks” 40 miles into downtown Toronto to haul batteries and lights for my cameraman dad, the farmland steadily converting—not so much to residential but, on the east side of Hogtown, out to Pickering and Ajax, into factories. This was all I knew as a lad, it seemed normal. I was in Boy Scouts when the Pickering nuclear power plant was opened, the infill between Oshawa and the Big Smoke was, as I look back, truly amazing. Soon it was solid factories from Canada’s “motown” (federal NDP leader Ed Broadbent’s riding) to Hamilton and beyond to Niagara Falls, some 120 miles (noplace I know of does waterfront development worse than Ontario, double that for Hogtown). “Normal” ended when the sprawl reached my little hamlet which, along with several others in two counties, was expropriated for an airport that was never built. It was just a continuation of madcap development (the perimeter of Toronto grew in length by 9 miles a year, fastest in North America) but it finally got to me and I left for the West Coast soon’s I could legally quit Pickering high school—just as factories were sprouting up all around the town.
Then came free trade with the US.
I was never for free trade. Hundreds of thousands of manufacturing jobs were lost in Canada, mostly from the “Golden Horseshoe” area that wraps around the western end of Lake Ontario, as tariffs on both sides were eliminated. American-owned branch-plants didn’t need to be located north of the border anymore in order to avoid tariffs, taxes and duties that had existed before free trade. US companies would rather not be located in Canada, but they did invest in factories in north of the border because Canada was—and still is—a huge market for them. It was a difference of point-of-view thing: it was either jobs or profits. And jobs lost.
Labour was of two minds too: unions were either patriotic about building a fair and prosperous nation or globalist about doing away with all borders as Marxist Workers of the World. Recall it was just when the Soviet Union collapsed and there was giddiness all ‘round: globalizing neoliberals crowed, ‘Stateless Corporatists of the World Unite!” while workers celebrated the collapse of Soviet-Cold-War excuse for the decade-long delay of promised “trickledown” prosperity—and they were really ready because they hadn’t had a pay-raise since the 1981 global recession from which many resource enterprises hadn’t yet recovered. Workers weren’t yet convinced they’d been had, but there would be no trickledown. Instead there was the “Asian Meltdown”—another recession in the mid-90s. They struggled while the next decade saw over a trillion dollars of banking and corporate fraud in the US due to Reagans deregulation, one of free trade’s ideological partner along with corporate tax-cuts and slashing of social services.
I worked in the woods on the West Coast so from my point of view free trade was supposed to have ended the on-again-off-again US tariffs on Canadian softwood lumber—a longstanding US political football played by both Democrats and Republicans. When it became plain to me that this would continue in spite of free trade, I wondered out loud why Canada should be party to it. But it was too late to stop entrenchment of the new, rubber-tired, petroleum-fired, big box, just-in-time delivery-network paradigm. Mulroney decommissioned 30% of Canada’s railway tracks. This fix was so obviously in before the glitches even began to show up.
And they did in many little, irksome ways. American profiteers almost immediately quibbled about terms already negotiated; Mulroney seemed to be appeasing them when his government knee-capped Unemployment Insurance when they accused it of being an illegal subsidy; US companies lobbied to commodify Canadian water as if the FTA was merely the first logical step to realizing what the vast majority of Canadians still stand firmly against. The Liberals’ Red Book of campaign promises faded quickly when once-anti-GST Jean Chrétien became PM (it was nominal Conservative PM, Stephen Harper, who reduced the GST, but it’s still much bigger today than not having it at all as le ‘tit gars de Shawinigan had promised on campaign). He soon buckled to Big Pharma pressure to extend their patents 20 years. And on and on until the running joke was that NAFTA stood for “Nearly Always Favouring The Americans”—which is why I often referred to it without the ‘N’.
But for guys like me the big thing was softwood lumber tariffs just as for DJC it was Canadian negotiators caving on copyright and patents—and whatever else for whomever else, it was, and still is, attended by a raft of other nagging disappointments and complaints. If these were really glitches, they’d have been fixed by now. It’s been over three decades.
I won’t be surprised, however, if this latest, greatest threat to Canada fails to abrogate CUSMA—at least in the form it exists. I definitely agree: it should be “renegotiated” —like how long Canada will give US manufactories to locate in Canada in order to avoid extra costs in doing so, but otherwise in what way CUSMA can be abrogated that’s fair for its three parties (I don’t believe two wrongs make a right). But I rather expect powerful corporate interests will make sure it doesn’t happen (which is why I’m not as freaked-out as some about the Idorangiot’s preposterous worldwide tariffs: interests much, much bigger than he is won’t allow their assets to tarry in the bight).
I just keep thinking that Canada and the US already had the largest bilateral trade in world history BEFORE free trade. Yeah, and Connaught Labs, too, the non-commercial public health org set up in Toronto in 1914 to make diphtheria medicine, sold to the Canada Development Corporation in 1972–and lost in the Mulroney’s privatization drive in 1986. Yeah, and many more enterprises, public and private, that made Canada less dependent on what has proved to be a totally bogus free trade “deal”. We therefore need that capacity back.
I agree with you, DJC, that Canada should now play hardball in negotiating what favours us as often as our free-trading partners —but only as a consolation for as long as free trade exists between Canada and the USA. I was against it in 1988. It shouldn’t come as a surprise that I’m more against it now.
Indeed Scotty, Jean Chrétien was not only anti-GST but he wiped out Kim Campbell’s conservatives on an anti-NAFTA campaign. The majority of Canadians by far voted against NAFTA yet he ratified it with his majority.
As much as we might wish, this new attitude isn’t going to go away with Donald Trump – this is the future and we had better deal with it. Play hardball, diversify our trade and don’t restrict it to Europe. Asia is a natural trade partner. Start by taking off that stupid tariff on Chinese EVs that the US coerced our govt to do and that alone would send a huge message. Then put a tariff on services from the US like Amazon, Facebook, X, etc.
We are in for some pain from our “friends” next door but if we act smart Canada will be better in the long run not chained to the foundering US ship.
It was somewhat understandable Trump wanted to renegotiate the trade agreements others made, but that he is now reneging on his own past agreement says a lot. The US is an unreliable trade partner and in business there is generally a higher price to deal with the unreliable.
So, at this point we should not be compelled to stick to any terms of his past agreement we don’t like either. I understand why the US wanted terms to protect their large cultural and pharmaceutical industries, which is why getting rid of them would be leverage for us. And while we are at it, maybe we should look at a higher digital services tax in addition to a big tariff on Teslas. Its not just about tariffs on goods, we can hit Goliath where it hurts which is in services and intangibles.
Yes, the owners of all those large US industries will be upset and they will have a talk with their President and let him know. Perhaps they will succeed in getting through to him, I don’t know, but again at this point we should not feel compelled to abide by terms of Trump’spast agreement which are not beneficial for us.
The battle over copyright laws has been going on for a long time. The first notable voice raised was Charles Dickens who noticed copies of his works were appearing in the US and he wasn’t collecting any royalties.
https://www.copyright.gov/history/lore/pdfs/201201%20CLore_January2012.pdf
Enjoy the canal 🙂
Before the Mulroney-Reagan “Free Trade Agreement”, 80% of Canadian exports entered the US tariff-free, and of the remaining 20%, half was subject to tariffs not exceeding 5%. https://www.thecanadianencyclopedia.ca/en/article/free-trade
So-called “free trade” was really about limiting Canada’s ability to control its own economic destiny through such measure as “national treatment” — which is one reason why public health advocates are so adamant that we can’t allow further private sector intrusion into our public health care system: we don’t want to open the door to rapacious American health conglomerates taking it over.
Let’s just tear up CUSMA, NAFTA, and the original FTA, and return to status quo ante. We’ll all be better off.
I recall John Turner (RIP) making exactly that point during the debate prior to the 1988 election (which I recall as having focused on the FTA to the exclusion of almost all else – GST , though it was PC policy and even satirized on Air Farce, really did not get a lot of mention).
Good comment this morning in Paul Krugman’s blog: Trump Hates Canada for its Decency
https://paulkrugman.substack.com/p/trump-hates-canada-for-its-decency?img=https%3A%2F%2Fsubstack-post-media.s3.amazonaws.com%2Fpublic%2Fimages%2F8a1e7fb2-8823-4c6a-96c3-63ddda847103_1000x667.jpeg&open=false
Canada needs to back away from the table and do whatever it takes to not engage. The master negotiator cannot recognise facts, cannot comprehend economics. Until drumpf is gone so is our relationship or we can believe a compulsive liar is telling the truth. To put it in his terms He wants our beaver, and given his extortionist protection racket he can just grab us by the beaver. What can we do.
Ignore him and deny the audience and fearful tapdance he craves
I want to know what trashcan dani told him or Ford or O’Leary or Gretzky.
I want to know if the LDS tax free contribution of close to a billion/year from Canada to BYU is now a terrorist act.
I want to defend Canada from a large Southern Alberta Town that on flag day and to today is flying the Stars and Stripes.
We may just get to understand the Ukraine war out of this as Canada defenders are shot in the back by all those fringe and other Canadian drump supporters.
Tibet fell to China because a single lower official let them in. But who cares?
America has totally isolated us . Nobody is coming to save us. Trump doesn’t want resolution . Trump wants the absolute decimation of both America and Canada so the amera oligarchs can rebuild the golden age in his demented image. No negotiation will stop 2025.
So Lets call out the dictator and the dick traitors and get real.
When it comes to Canada’s responses to US tariffs they should be permanent measures which benefit our country in the long run. BS measures like BC not buying US alcohol from Red States is less than useless, these are just designed as weak bargaining chips to be removed in negotiations and Donald Trump knows that. He knows these are just transitory. To be truly effective measures like DJC’s copyright suggestion and say preference for Canadian companies in all govt contracts need to be permanent. Temporary measures are useless as no one is going to build a factory or business if the govt is going to pull the rug out later. The US will be severely pissed off but it’s the FAFO rule.
We need to permanently reorganize our economy and it won’t be pain-free but it’s necessary. I don’t really care about US companies or workers – it’s clear they don’t care about us – their economy is their economy and they can do whatever they please. Obviously some CAN-US trade is ok but Canada needs to diversify away from the US for the long term.
Let’s cut off water, electricity, and oil and gas exports. Let the yanks freeze in the dark.
Just to be clear, we don’t export water unless it flows naturally across the border, in which case there is international law to consider. DJC
Hello DJC and fellow commenters,
Thanks to Scotty on Denman for a review of factors leading us to where we are now. And it is extremely important to keep U S private sector corps out of out health care system, as Gerrymacgp has pointed out. Unfortunately, Danielle Smith can’t wait to privatize our health care system as much as she can. she has made it clear in the past that she doesn’t agree with publicly provided health care and she thinks that everyone should directly pay for their own. Living in the U S for a couple of years, I saw the disaster that their system often creates for people.