The North American Free Trade Agreement (NAFTA) between the United States, Canada, and Mexico was negotiated more than 25 years ago.
Over the past quarter-century trade has changed drastically, especially online, and to accommodate these changes the three countries have been working hard to modernize the international deal.
A few weeks ago the US and Mexico reached consensus on many key issues and last night Canada came along, resulting in a new version of NAFTA. Titled the United States-Mexico-Canada Agreement (USMCA), the deal covers a wide variety of trade issues including various copyright related subjects.
“USMCA will give our workers, farmers, ranchers and businesses a high-standard trade agreement that will result in freer markets, fairer trade and robust economic growth in our region,” US Trade Representative Robert Lighthizer and Canadian Foreign Affairs Minister Chrystia Freeland said in a joint statement.
One key change for Canada is that the country’s current copyright term will be extended by 20 years. At the moment copyrighted works are protected for the term of the author’s life, plus 50 years. This will be extended to life plus 70 years, at a minimum.
The Canadian Government has previously shown reluctance to make this change but gave in eventually.
Another controversial subject that was widely debated by experts and stakeholders are ‘safe harbors.’ In the US, Internet services are shielded from copyright infringement liability under the safe harbor provisions of the DMCA, but in Mexico and Canada, that’s not the case.
The new USMCA includes a safe harbor section. This means that Internet services will be shielded from direct liability for copyright-infringing users. However, this protection doesn’t come without obligations.
The agreement specifies that ISPs should have legal incentives to work with ISPs to ensure that copyright infringements are properly dealt with.
This framework shall include “legal incentives for Internet Service Providers to cooperate with copyright owners to deter the unauthorized storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorized storage and transmission of copyrighted materials,” the agreement reads.
ISPs that want to apply for safe harbor protection also have to take down pirated content and implement a repeat infringer policy, which the US already has. This means that ISPs will have to disconnect persistent pirates.
This is achieved by “adopting and reasonably implementing a policy that provides for termination in appropriate circumstances of the accounts of repeat infringers,” as the agreement prescribes.
The current text is quite vague and doesn’t define what the “appropriate circumstances” are to terminate accounts. This was also the case in the US, but after a series of lawsuits, ISPs have recently tightened their termination policies.
Crucially, the takedown and repeat infringer termination policies don’t apply to Canada. There is an annex to the agreement stating that when a country applies to various other conditions at the time of signing (including a notice and notice scheme), these do not apply.
It is clear, however, that the safe harbors will provide protection for ISPs against copyright claims. And with regard to the EU’s filtering plan, it’s worth noting that the agreement specifically states that “monitoring” or “affirmatively seeking facts indicating infringing activity” is not required.
At the time of writing the agreement has only been available for a few hours, but it’s expected that further analysis from experts will provide more context during the days to come.
While there is a final agreement, lawmakers in the three countries have yet to sign off on the new text, which isn’t a done deal yet. This means that, for now, the current NAFTA agreement remains in place.