USMCA and Copyright

I heard Richard Haas (US Council on Foreign Relations) on MSNBC in October 2018 about the “new NAFTA” (USMCA) and Haas said something that especially piqued my interest in the new treaty text, when he said that the new treaty reminded him more of the Trans-Pacific Partnership language (that Trump famously dumped, although has recently indicated he might want to re-review) than the old NAFTA language. I think what Haas meant by that is that the USMCA is intended to establish more detailed and consistent laws, regulations and treaty mechanisms, that would be certainly consistent with US laws and regulations (indeed some critics of the TPP described it as an attempt to impose US-style laws on others). With that in mind I reviewed the text of the IP provisions (chapter 20) available on the USTR site, and wrote about the details and the complications here.

With that in mind, I wanted to review the text of the IP provisions (chapter 20) available on the USTR site, and compare with existing US copyright law, and to think a bit about what I understand about relevant laws in Canada and Mexico. I’ve been reviewing social media (mostly Twitter) comments, and folks that tend to be pro-user rights have decried the term extension/harmonization (to life of the author plus 70 years) that would particularly affect Canada (which had a shorter term), and I’ve heard from pro-creator folks who are concerned about the imposition of US-style “safe harbors” (section 512) for Internet Service Providers (which many view as outdated and too encouraging of platform irresponsibility).

With the Haas TPP comments in mind, I was expecting that the USMCA copyright provisions would reflect exclusively a US statutory/regulatory construction— I think it’s fair to say that this is largely the case, but not exclusively. Interestingly in the definition of rights in Article 20.H.2-4, copyright is enumerated as a reproduction right, a communication to the public right, and a distribution right—this language sounds more like the EU Information Society directive of 2001 than what I can glean from the “exhaustive” research I’ve just done on existing Canadian and Mexican copyright law. These sections in the USMCA differ from existing construction in any of the three countries—I think it’s fair to say that the EU formulation is not inconsistent with existing copyright laws in the region, but it isn’t exactly the same (although Canadian law does talk about communicating to the public). It would be interesting to know how these provisions were included and why, and of course if there are any significant implications!

The duration of 70 years plus life is in Article 20.H.7—which has the interesting footnote that this is a minimum and that treaty members may provide for a longer duration (in which event, under national treatment doctrine, they would have to extend that longer duration to other treaty member nationals who might seek to enforce rights in that country). On the criticism of 70 years, I would simply note that Berne and TRIPS require at least life plus 50 years (and contemplate 70 years), and the EU is set at 70 years. Duration in Canada has been 50 years, and duration in Mexico had been as much as 90 years (I believe the economic rights are now set at life plus 75 years).

On limitations and exceptions, which had been a big issue on the part of pro-use advocates re TPP (where the argument was that US-style “fair use” should be applied), Article 20.H.9 is easy to overlook— it simply notes that exceptions must comply with Berne/TRIPS on the “3-step” test (this, of course, is always easy to say and not always easy to determine). Nothing on fair use per se, although Canadian copyright law has expanded the scope of fair dealing in the educational context significantly over the past several years, much litigated in Canadian courts. Interestingly the 2018 Special 301 Report commented on the ambiguities in the Canadian educational exceptions, while noting that recent court decisions (likely thinking of the York University case, 2017, which has similarities to the US Georgia State case) are helping to improve those ambiguities—but there was no specific reference to this in the USMCA text. To be fair, most of the Special 301 Report criticism of Canada focused on pharmaceutical products and related patents, and lax customs enforcement and the draft USMCA seems to have many provisions dealing with both areas (not reviewed by me in any detail).

On the ISP safe harbor, this is, of course, a contentious issue now in the 5-year review in Canada of Canada’s most recent copyright law revisions.  I think ISP liability is currently dealt with in the discussion on secondary infringements and on network services, where exceptions for hosting (without knowledge) and caching are discussed. There is no exception for services that knew or should have known that infringing acts are occurring on the ISP platform—and particularly not when the purpose of the service is primarily to enable infringement. I could not find any provisions on responding to notices, or otherwise the notion of a “safe harbor”.  Similarly, there were no relevant provisions that I could (easily) find in the law in Mexico.

The provisions under Articles 20.J.10-11 and the Annex to Section J of the USMCA deal with safe harbors for ISPs and do generally follow the provisions of Section 512 of the US law, although there is some interesting prefatory language in the USMCA that encourages cooperation between ISP providers and rightsholders (this is echoed in later discussion about standard industry technical protection measures). Otherwise, the 512 concept is included in the USMCA of an exemption from liability where the ISP had no direct knowledge of infringements, or upon being notified by a rightsholder, acts to remove or disable access to infringing content. The USMCA also incorporates the “counter-notice” concept. The Annex notes that treaty members can further distinguish other circumstances by which an ISP might be disqualified from safe harbor protection, or provide additional secondary liability in circumstances where the ISP has a primary purpose for enabling infringement acts (this looks to me to be a nod to the Canadian construction).

Three interesting but unrelated side notes on music, collective management, and presumptions in infringement. First, the “related rights” section in 20.H.6 which would deal in part with music recordings seems consistent to me with the US’s recently enacted “Music Modernization Act” which closed a pre-1972 sound recordings loophole. Without that new legislation, there could have been issues for USG in accepting the USMCA text. Second is the inclusion of a section on “Collective Management” (20.H.13) which simply notes the important role of CMOs (which in the US are either voluntary, such as the Copyright Clearance Center—personal note I sit on the Board of the CCC— or very specific and narrowly drawn for music licensing). Finally, I also found the “presumptions” section in the infringement provisions (20.J.2) interesting in elucidating a rebuttable presumption that the indicated author or producer of a particular work does, in fact, own and exercise copyright in the work (this could be a nod to “anti-formalities” under Berne).

My conclusion is that rightsholders did moderately well in the proposed USMCA but that technology interests and ISP platforms did better. I think it is useful to have a harmonized term of protection (life plus 70), and I think that the clearer digital rights (communication to the public) should be helpful in Mexico (reviewing the existing law today, I didn’t find much dealing with digital rights). It’s disappointing that the USG did not advocate concerning Canadian education exceptions. The creation of an ISP safe harbor in Mexico and a far more robust set of ISP protections in Canada are certainly very significant, and disappointing considering the success recently in Brussels in convincing legislators that technology platforms need to be incented to act more responsibly towards rightsholders. Perhaps the prefatory language re cooperation can be picked up and expanded as the language gets further review in the respective legislatures.

Mark Seeley