Digital Rights Issues Bubble Beneath NAFTA Re-Negotiations Talks

There’s been talk off and on about the re-negotiation of the North American Free Trade Agreement (NAFTA). Often overlooked are the digital rights issues that lurk beneath the surface.

It’s one of the many campaign promises Trump made while on the campaign trail. Earlier this year, Trump followed through on the promise to pull out of the Trans-Pacific Partnership (TPP). While some thought it was campaign bluster, words became action. Now, the TPP is effectively dead thanks to the provisions that a certain percentage of the GP must be represented by the trading partners.

This leads us to another campaign promise: the re-negotiation of NAFTA. This trade agreement, of course, affects Canada, the US, and Mexico. A lot has been made of the promise. In the early days of the presidency, Trump seemingly brought the option on the table of fully scrapping the agreement. These words have since been backed away from and now, the word is now more to do with “tweaking” the agreement.

As of late, there seems to be a fair amount of back and forth on the NAFTA re-negotiations. One worry is that the US wants to add more border taxes. Canada, for its part, is sending ministers down to the US in order to cool things down. From the CBC:

Three more ministers from Justin Trudeau’s cabinet will be in the United States this week, as the federal government continues to lobby American leaders and lawmakers about the importance of maintaining unfettered trade between the two countries.

With U.S. President Donald Trump hoping to renegotiate the North American Free Trade Agreement and others suggesting the imposition of a border adjustment tax on imports to the United States, the Trudeau government has been at pains to stress how the American economy benefits from access to Canadian companies and consumers.

That effort has expanded beyond the Trudeau cabinet’s dealings with its American counterparts to include outreach at the state and municipal levels, with Canadian ministers targeting a list of 11 key states.

All this is happening on the backdrop over another issue: Dairy. According to the CBC, there is a war of words surrounding the dairy industry in Canada and the US:

Canada’s envoy to Washington has shot back at criticism by President Donald Trump and U.S. milk producers, saying the facts don’t support a charge that the Canadian dairy industry is to blame for the woes of some American farmers.

“Canada does not accept the contention that Canada’s dairy policies are the cause of financial loss for dairy farmers in the United States,” Ambassador David MacNaughton said in a letter to the governors of Wisconsin and New York that was released Tuesday night in rebuttal to Trump’s surprise criticism of Canada earlier in the day.

“The facts do not bear this out.”

The U.S. president’s surprise decision to call out Canada by name Tuesday put dairy farmers north of the border on notice that they are in America’s fair-trade sights.

If anything, these latest stories seem to torpedo the hopes Canada had that the NAFTA re-negotiations would be aimed more at Mexico than Canada. The hope included the idea that whatever damage Canada would get, it would be collateral damage amidst a more combative trade relationship between the US and Mexico.

From a digital rights perspective, it’s easy to look at stories like these and think that all this has nothing to do with digital rights. This assumption would be incorrect.

According to a leaked draft notice posted last month, digital rights might not only be present in the negotiation process, but may also be all the provisions that were thrown out with the killing of the TPP.

At the time, Michael Geist was able to break things down. In one post, Geist notes several provisions discussed surrounding Intellectual Property.

One provision surrounds copyright term extension. Speculation suggests that Canada may be compelled to extend copyright to life plus 70 years or even more. In addition, there may be digital lock provisions that would be far more restrictive than what Canada is already obligated to fulfill.

In addition, there will be pressure to remove any so-called “Netflix Tax”. Essentially, various organizations that operate in Canada are obligated to fulfill a CanCon requirement. The goal from a US perspective is to seemingly allow their services to operate in Canada without being obliged to fulfill such requirements.

A controversial provision in the TPP is the increasing powers for border enforcement. The US seems to be seeking more enforcement with less court oversight.

For file-sharers, the push for criminal damages for copyright infringement might tweak a few ears. Currently, under the 2012 copyright reform bill, there is a cap for damages for non-commercial infringement. The push seems to eradicate such a cap and allow for statutory damages. Statutory damages means filesharers, or people who break a digital lock (DRM), could be on the hook for hundreds of thousands, if not, millions of dollars for a small handful of acts of copyright infringement. The argument that said music only costs, at most, 99 cents each wouldn’t likely hold water.

Currently, in the US, acts of copyright infringement on filesharing networks can end in fines that go into the 6 or 7 figures. Because of this, record labels and movie studio executives can turn a simple act of copyright infringement into a legal lottery ticket. In the process, they can cause financial ruin to pretty much any random individual they happen to find at the other end of an IP address. While many critics call the system a joke, it seems that the US wants Canada to follow suit on such a system.

Geist also notes in second posting that there are other concerns. These concerns revolve around the Digital Economy and services.

One provision being sought is the loosening of digital transfer laws. The US seemingly wants greater access to personal data stored in Canada. This, of course, affects not only Canada’s privacy rights, but also free speech rights because some countries have a record of cracking down on free speech.

The problem with the negotiations process is that there are still a lot of questions in the air. One question is, when will the negotiations take place? What will actually be negotiated? What kind of transparency will be involved during the negotiations? What will the US side of the negotiations even look like? Is it still possible the US would still tear up NAFTA? Unfortunately, there are a lot more questions than answers at this point.

Drew Wilson on Twitter: @icecube85 and Google+.

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