Later this month, the U.S., Canada, and Mexico will launch their sixth round of negotiations for the modernization of the North American Free Trade Agreement (NAFTA). Recent news coverage has focused on whether the Trump administration will withdraw from the agreement or not. As civil society continues to be excluded from this process, there is still little information about actual intellectual property proposals, but the position of Public Knowledge remains unchanged: trade agreements must promote a balanced copyright system that serves the public interest.
The U.S. must promote a balanced copyright system
Public Knowledge believes that, if copyright norms are indeed proposed, trade agreements must reflect the balance inherent to the U.S. legal system. This requires the adoption of protections like fair use and limitations to intermediary liability. As their positive economic impact in the U.S. reflects, these types of copyright limitations and exceptions are essential for modern societies in the digital age, and should be a primary objective of international norm-setting efforts. Failing to promote the principles already embedded in U.S. laws and mandated by the U.S. constitution would be anathema to free expression and permissionless innovation. This view is shared by many civil society and tech industry groups, all of which have urged the United States Trade Representative (USTR) to promote a balanced copyright system.
At least one other North American trade partner seems committed to promoting appropriate balance. The recent report on NAFTA negotiating objectives by the Canadian House of Commons Standing Committee on International Trade recommended to “oppose provisions that would reduce its ability to ensure that the Canadian intellectual property regime balances the interests of right holders and users.” This December 2017 report, which summarizes the views of Canadian stakeholders, underscores how many international actors depend on and support the promotion of a balanced copyright system in trade negotiations.
Recent history shows balanced copyright norms can be enshrined in trade agreements
Adopting strong trade norms on copyright exceptions and limitations consistent with U.S. law is eminently feasible. Most recently, this was achieved through article 18.66 of the Trans-Pacific Partnership (TPP), which required signatories to “promote balance in copyright systems including through exceptions and limitations to copyright for legitimate purposes, such as criticism, comment, news reporting, scholarship, and research.” The language of the TPP article 18.66 was consistent with U.S. laws and interests. While Public Knowledge repeatedly criticized the secrecy of those negotiations and warned that several TPP provisions ran the risk of locking in copyright provisions that are long overdue for reform, the specific language on copyright exceptions and limitations was a positive step forward for consumers and internet users. If copyright norms are part of a modernized NAFTA, it should, at a minimum, include similar language.
We remain vigilant
Unfortunately, the entertainment industry — represented by groups like the Recording Industry Association of America (RIAA) — wants to use NAFTA renegotiations to export only one half of the U.S. copyright system: stringent copyright protections without their accompanying exceptions and limitations. This would risk disrupting the delicate balance present in the U.S. copyright system. Paradoxically, in recent years and under the current legal framework in the U.S., this sector has enjoyed solid revenue growth, according to RIAA’s own metrics. By mischaracterizing these facts and the legal safeguards that allow creators to thrive in the digital age, the entertainment industry wants to negate the adoption of balanced international standards and principles that have worked relatively well in the U.S.
Attempting to accommodate the disproportionate demands of the entertainment industry would make the NAFTA process harder than it already is, for the sake of questionable gains confined to only one sector. Consumers, free speech, and the better part of the U.S. economy that depend on copyright exceptions and limitations would see a key legal safeguard in a diluted digital environment. This is why we continue to follow the NAFTA process closely, reiterating our call for the promotion of mandatory norms on copyright exceptions and limitations.