The Trump administration has released its negotiation objectives for the North American Free Trade Agreement (NAFTA) renegotiations. It’s bad news if you are a fan of online civil rights.
If last month taught us anything, it’s that the Trump administration is no fan of civil rights in an online era. This was made obvious when his administration declared war on network neutrality. Now, more recently, the administration is re-iterating this stance through the negotiation objectives (PDF) paper.
Trump’s NAFTA Objectives
The objectives we are interested in reading about start on page 10. Trumps team states that, on the file of intellectual property rights they are aiming to “Promote adequate and effective protection of intellectual property rights, inclu ding through the following:”
The first objective that caught our eye is the following:
Ensure provisions governing intellectual property rights reflect a standard of protection
similar to that found in U.S. law.
This is extremely problematic from the get-go. US laws contain provisions surrounding Digital rights Management (DRM). The problem is that as long as there is some kind of technical protection, any laws surrounding exceptions like fair use suddenly do not apply. Digital rights advocates have been fighting for years just to get small slivers of Fair Use back in the hands of ordinary Americans.
If you, for instance, criticize a copyrighted work with DRM, rightsholders can claim circumvention of a protection measure and litigate for copyright infringement. While minor exceptions have been granted over the years, other countries would have to start from scratch and fight tooth and nail just to re-gain small pieces of digital rights back.
Security research has also been hampered by anti-circumvention laws. There have been numerous stories over the years where security vulnerabilities have been found in technological systems. When researchers approach companies to get these vulnerabilities fixed, litigation of the researchers ensue. The problem became so bad, the Electronic Frontier foundation (EFF) launched an entire project called the Coders Rights Project and incorporate this problem into it.
Another problem is the notice-and-takedown system found in the US. Every day, people post perfectly legal content online. Unfortunately, people who hope to silence some of these voices find themselves exploiting the copyright laws as a sledgehammer for fast and easy censorship. Because the laws are to nuke first, ask questions later, it has given rise to the now famous Takedown Hall of Shame. An all too common problem in the aftermath is that those who issue fraudulent takedown notices experience no consequences of their actions.
These are just three of a whole host of problems with the above idea. Now, the US is hoping to export these laws into other countries where, in some cases, fair use or fair dealing laws are much narrower in scope. The end result will inevitably lead to a whole host of problems.
If some people think that this is a bad interpretation of this point, the administration double-downed on it with the following point:
Prevent or eliminate discrimination with respect to matters affecting the availability, acquisition, scope, maintenance, use, and enforcement of intellectual property rights.
Furthermore, the administration went even further with the next point:
Ensure standards of protection and enforcement that keep pace with technological developments, and in particular ensure that rightholders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works.
What that means is difficult to say. This could mean they are hoping for a three strikes law be exported to Canada and Mexico. It could mean criminal penalties for non-commercial infringement. It could mean forcing governments to foot the bill for litigating their own citizens based on, at best, the flimsy evidence of an IP address. It could mean a whole lot of things, but non of it is any good. In fact, the next point does hint at the direction this point is taking:
Provide strong standards enforcement of intellectual property rights, including
by requiring accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms.
To be fair, the wording is a bit vague to some degree here. Is criminal enforcement directed at commercial infringement or both non-commercial and commercial infringement. It actually isn’t all that clear here, but criminal sanctions are seemingly top of mind.
These points ultimately point to a potential laundry list of proposals made by major multi-national corporate interests on the copyright profile.
The Fierce Lobbying on the NAFTA Lead-up
For those who have been following the NAFTA re-negotiation profile, some of this may not be all that surprising. We’ve covered some of the intense lobbying efforts by multi-national corporate organizations already.
In one submission, the Recording Industry Association of America (RIAA) proposed a crackdown on innovation, forcing ISPs (Internet Service Providers) to become liable for copyright infringement, to clamp down on websites that allow users to either upload content in general or even link to content, unlimited monetary fines for infringement, the elimination of Fair Use/Fair Dealing, and the exporting of American laws onto other countries.
Meanwhile, the Motion Picture Association of America (MPAA) made demands of their own. Among those demands are advocacy of Internet censorship, notice-and-staydown provisions, liability for those who “assist” in copyright infringement, the ability to shut down websites at will, the application of criminal sanctions on those who break a DRM (ala jail time), and extending copyright terms to even more extreme lengths.
It would appear that their remarks are now core American government objectives now.
Digital Rights Advocacy Had Their Say on NAFTA
People who fight for digital rights have been pushing back against this. The EFF, for their part, issued their own submission on the NAFTA re-negotiations. Among the remarks, the EFF advocated (PDF) the following:
EFF does not believe that intellectual property rules are a good fit for trade agreements such as NAFTA. Prescriptive IP rules usually fail to account for developments in technology such as the Internet, or changes in business and social practices such as the sharing economy. Including such rules in trade agreements could inhibit the United States from modernizing its own intellectual property rules in the future.
Moreover because the strict level of intellectual property protection demanded by the United States recording, motion picture, and pharmaceutical industries are so contentious amongst our trading partners, insisting upon these prescriptive rules requires the expenditure of extraordinary amounts of political capital. This weakens America’s position on other issues, benefiting a single industry sector at the expense of other sectors of the U.S. economy.
More specifically, the EFF called for more fair copyright rules including the following:
As a member of the Re:Create Coalition (a non-partisan, multi-stakeholder coalition of creators and consumers for balanced copyright), we recently released a statement explaining how the inclusion of fair use in trade agreements would make them more balanced than they are now. The statement, issued by Re:Create’s Executive Director Joshua Lamel, says:
If NAFTA is renegotiated and if it includes a chapter on copyright, that chapter must have mandatory language on copyright limitations and exceptions, including fair use. The United States cannot export one-sided enforcement provisions of copyright law without their equally important partner under U.S. law: fair use.
The EFF also touched on encryption and network neutrality:
One issue that we do not believe is mature enough for inclusion in a trade agreement is net neutrality. Although EFF is firmly committed to the principles of net neutrality, which prohibit data discrimination by Internet providers, the devil is in the detail, and the detailed implementation of net neutrality principles even in U.S. law is far from mature. Given the many impacts of net neutrality rules on non-trade issues, a trade agreement is not the right place to deal with this issue at a multilateral level.
Rulemaking related to domain names is also an inappropriate topic for trade agreements, for similar reasons. There are already dedicated multi-stakeholder bodies at the international and domestic level (namely ICANN and the national country-code domain registries) that are responsible for setting policies pertaining to domain name registration and dispute resolution. It would be inappropriate for NAFTA, which has a much narrower advisory system, to preempt these more open and transparent processes.
Finally, rules on encryption standards and on the mandatory disclosure or review of software source code are also inappropriate for inclusion in trade agreements, as such rules implicitly have impacts on cybersecurity and other areas of government policy, and cannot be dealt with adequately in isolation from that broader context. To give an example, prohibiting countries from mandating software source code disclosure would eliminate a policy option for responding to the poor state of security in home routers and Internet of Things (IOT) devices. At a time when the security threats to American users and companies from vulnerable digital devices has never been higher, this would be rash in the extreme.
Rather than including prescriptive, one-size-fits-all rules on such topics in NAFTA, a recommended alternative is to discuss these issues within soft law fora such as the OECD and the Internet Governance Forum (IGF), which are better equipped to consider a range of different perspectives and where there is less risk that wrong decisions will have negative long-term effects for our country
The submission continues with a lot of other fruitful ideas. Unfortunately, it seems that these remarks were ignored.
Digital Rights Advocates Upset at NAFTA Exclusion
With no mention of fair use or protections for civilians, the paper was met with outrage. In one response, the EFF commented, “The negotiating objectives are hopelessly general, but it seems that our requests largely fell on deaf ears.”
The organization picked apart the points made in the negotiation objectives paper, explaining how bad some of the Trump administration proposals are. While the people of North America are now put in a much more precarious situation, it wasn’t as though the people didn’t try to push back on the fierce lobbying efforts by big corporate interests. Unfortunately, it now seems that the protection of digital rights will now have to come from elsewhere.
Canadian Digital Rights Advocacy Try Their NAFTA Hand
For supporters of digital rights, it would appear that another player will have to be at the negotiating table fighting for digital rights. At this point, it seems that this will have to come from Canada or Mexico.
In Canada, Michael Geist issued his own submission on the topic to the Canadian government.
In his submission, Geist echoed the EFFs comments by stating that NAFTA is a poor place to even be discussing intellectual property rights in the first place. If, however, intellectual property laws are to be added to NAFTA, it should allow for rules that show balance. Three objectives Geists suggests are, “promoting a level playing field for innovation, mandating compliance with international law, and codifying that protections and safeguards need to be equivalent but not necessarily identical in structure within NAFTA countries.”
He elaborates on this by saying that provisions should include:
a. Fair Use/Flexible Fair Dealing
b. Anti-Circumvention Legislation Exceptions
c. IP [laws that prevent] abuse and misuse
Will Digital Rights Even Make the NAFTA Re-Negotiating Table?
While it may sound cynical at first, a big question is whether or not digital rights will ever make it to the negotiation table. The current Canadian Liberal government already has a history of being, at best, ambivalent towards the concept of digital rights. During the contentious Comprehensive Economic and Trade Agreement (CETA) negotiations, the Liberal government seemed to all but support the provisions that cracked down on digital rights. Curiously, at the last second, the government swerved away from the concrete pillar and chose not to implement the copyright provisions found in the agreement. While this doesn’t prevent the laws from wafting into the Canadian lawbooks, the move does, at least, delay their implementation.
For its part, Mexico currently has the longest copyright term in the world. Given the Trump administrations war on the Mexican government including building a wall, it would be understandable if the government has much bigger concerns to worry about during these re-negotiations.
So, it’s really hard to say if digital rights will ever make it onto the table. It would be nice to be pleasantly surprised, but the situation isn’t very good for the time being.
The Advantage of NAFTA Over Other Trade Agreements
If there is a silver lining anywhere to be found, it is that transparency is better than other trade agreements in the past. Others, such as the Trans-Pacific Partnership (TPP) agreement, CETA, and the Trans-Atlantic Trade and Investment Partnership (TTIP) are held largely in secret. There was no consultation period. The positions of varying countries were held in secret. The negotiating text was held in secrecy. In fact, the only way anyone knew anything at all about these agreements was through leaks thanks to various organizations like Wikileaks, KEIOnline, and Greenpeace.
In this agreement, you can see the positions of the multi-national corporations and their respective organizations. Consumer rights organizations can participate in the negotiation process. It’s plain as day when the government ignore the advocacy groups in favour of corporate interests. In addition, you can see it plain as day who the governments represent in the end.
NAFTA’s Next Steps
So, the question is, what’s next for NAFTA? If this recent Reuters article is anything to go by, it appears that the messy business of negotiation is the next step. Whether or not this will be transparent or held in secrecy is anyone’s guess at this point.
Right now, we have Trump who is all but declared war on civil rights and two other countries that we don’t even know if they have a position on digital rights. One possibility to keep in mind here is that if the worst copyright laws dreamed up make their way into NAFTA, it’s entirely possible that the implementation of those laws will get skipped. We’ve seen it before with CETA, so unless it is part of any new NAFTA implementation bill, that would be reason to fear that it’s almost all but over.
Another possibility is that NAFTA re-negotiations will break apart. After all, Trump has already threatened to teat up NAFTA in the first place, so if negotiations break apart, so to do the bad laws that could wind up being in there. Given the chaos that is the Trump administration, what happens next is anyone’s guess.