The copyright provisions in NAFTA could face further uncertainty as doubts about making the self-imposed deadlines intensifies.
The North American Free Trade Agreement (NAFTA) affects things far beyond milk and automobiles. This includes copyright and digital rights. While we’ve been skeptical for a while on the prospects of Canada and the US making the self-imposed deadlines, others are now expressing their skepticism as well. This is because the self-imposed deadline is set to this Sunday. That is definitely fast approaching.
For weeks, Canada’s Foreign Affairs minister Chrystia Freeland have been repeating over and over again that talks are going smoothly. Freeland would describe the trade talks as very productive without really giving a whole lot of details. It’s only in the last week or so that the talking points began shifting. They went from simply “productive” to “intense” and “productive”. Since Canadian media isn’t one to rock the boat, they seem to simply overlook this change in tone and simply went along with the talking points.
We, of course, knew that, save for some kind of 11th hour miracle, that these deadlines will get blown past as well. This isn’t a question of the abilities of negotiators to find an expeditious resolution. It’s also not a question of competence and rhetoric between Canada and the United States. What this really is is precedent in trade agreements.
For instance, the trade agreement known as the Trans-Pacific Partnership (TPP) had many self-imposed deadlines. Those close to the talks kept saying things like the agreement will be finalized by the end of the Summer or before the new year. We, in all honesty, lost track of how many deadlines came and went without a deal as talks dragged on for years. As everyone knows, the original TPP was scrapped in the end altogether. The Comprehensive Economic and Trade Agreement (CETA) also had their share of deadlines as well that came and went.
The thing is, trade agreements of this nature are complex. You could create a two year university course describing simple bi-lateral agreements. While it is easy to get caught up on a few small details such as Canadian dairy or how cars are manufactured, these agreements tend to involve a huge portion of the entire economies of different countries. To this day, we never saw any indication that NAFTA would be any different. So, seeing self-imposed deadlines of less than two years after negotiations even started is a big red flag for us. Five years is far more reasonable than two years to begin with.
Another thing to keep in mind is that this is not even the first self-imposed deadline that was set in the first place. In fact, there was talk that NAFTA re-negotiation would be completed before the end of the year. That was in 2017. Following that, there were talks about how NAFTA was on the verge of completion in April. Two months later, doubts were cast on that after US president Donald Trump ratcheted up anti-Canadian rhetoric. So, really, the best case scenario is that we are now at the point of saying “fool me three times, shame on both of us” when it comes to NAFTA deadlines.
So, what is the word now? It seems that trade negotiators still find themselves far apart in NAFTA talks. From CTV:
On Tuesday, Lighthizer — also in New York for the UN General Assembly — said while the two sides remain far apart on a number of issues, the two sides have agreed for now to deal with the issue of 232 tariffs separately.
“I think the U.S. would like (Canada) to be in the agreement, but there’s a still a fair amount of distance between us,” he said.
“On steel and aluminum on this point, we started off trying to have some kind of overall agreement that would accomplish that. I think our view is now we’ll turn to that as a next stage.”
Trudeau’s interactions with the mercurial U.S. president have been a subject of great curiosity over the course of his three days at the General Assembly.
First, there were the comments from U.S. national security adviser John Bolton, who suggested Monday that requests for a bilateral meeting “couldn’t be accommodated.” Officials in the Prime Minister’s Office insisted no such request had been made, given already close contact with the White House.
The next day, what appeared to be a brusque encounter between the two leaders — Trump appeared to ignore the prime minister at a UN luncheon until Trudeau tapped him on the shoulder, only to shake hands with a still-seated president — sent tongues wagging.
American media also paints a rather grim picture about the talks. From the Washington Post:
The Trump administration appears virtually certain to miss its self-imposed weekend deadline for reaching an agreement with Canada on a new North American trade deal, according to U.S. officials and people close to the talks.
A downbeat U.S. Trade Representative Robert E. Lighthizer said Tuesday that negotiators are “sort of running out of time” to include Canada in the trade deal with Mexico, which was finalized last month.
If the remaining gaps cannot be bridged in the next few days, the administration will request congressional approval of a Mexico-only deal, Lighthizer said in New York at the Concordia Summit, an annual policy conference.
That would open President Trump to intense criticism from key GOP lawmakers, including Sen. John Cornyn (Tex.), the No. 2 Senate Republican, as well as leading business groups, which favor preserving a unified North American market.
So, with making the deadline becoming increasingly doubtful, the next question is, what happens after the deadline? Will there still be negotiations after? Will there be efforts to resurrect the NAFTA talks? Is the whole negotiation process dead at that point? If so, will the original NAFTA agreement stand given that pulling out of the original NAFTA requires congressional approval? Logic would suggest the talks would continue, but with an illogical US president running things still, that puts so much more uncertainty on the situation.
Of course, while most outlets are focused on a few small aspects of NAFTA, the issue of copyright didn’t go unnoticed in all of this. Michael Geist speculated that the length of copyright terms are still in play earlier this month. He points to a US fact sheet about the negotiations and the fact that it did change:
The original fact sheet issued last week described the copyright term provision as follows:
Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information.
The provision appeared to involve works-for-hire or song performances, but not a full copyright term extension beyond the international treaty standard. Two days later, the U.S. issued an updated fact sheet that included a full copyright term extension:
Set a minimum standard of 75 years of copyright term for sound recordings and other works calculated by date of publication, and life plus 70 years for works calculated based on the life of the author.
While that description remained online for several days, it disappeared over the weekend. The current version goes back to the original fact sheet with no reference to a general copyright term extension. The back-and-forth suggests that the issue may still be at play as the Canadian negotiations continue with Canada rightly opposing term extension in the updated agreement.
So, the length of copyright is possibly in play during the negotiations. We don’t necessarily know what else is in play if copyright term length is in play still.
What we do know is that, back in 2017, Trump effectively called for an all-out crackdown on digital rights back in 2017. Among the demands is that Canada’s copyright law mirror US copyright law as well as civil and criminal enforcement for infringement of copyright. Those calls are basically a carbon copy of what the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA) are demanding. All that happened while digital rights advocacy organizations such as the Electronic Frontier Foundation (EFF) got shut out of discussions completely. That’s the starting point the US had in all of this.
With the TPP effectively removing most of the strict copyright laws and Canada not implementing the excessively strict copyright laws found in the Comprehensive Economic Agreement (CETA), it’s not hard to conclude that NAFTA represents the next best chance to get highly restrictive copyright laws put in place on behalf of major foreign corporate organizations. Given the many failed attempts to bring tough copyright laws through government dating clear back to 2005, the hope that NAFTA would circumvent democracy and shoehorn these copyright laws into the process could very well be fading with the hopes that a deal can be reached.
Given that we live in unusual times these days, nothing is absolutely certain. We’ll keep a close eye on things and monitor for any further developments on this file.