Inside the Lobbyists NAFTA Copyright Demands: Copyright Alliance Drew Wilson | June 24, 2017 After a period of consultation, it seems that US lobby groups have come out swinging in the NAFTA (North American Free Trade Agreement) talks. Today examine one: the Copyright Alliance. After the US election, US President Donald Trump made good on a promise to renegotiate NAFTA. As trade talks get set to begin, it seems that US copyright lobbyists are taking the opportunity twist NAFTA to bend to their wishes. This involves dumping the most extreme copyright laws while tearing down critical consumer and innovation protections. Michael Geist is pointing to several examples of this. We decided to look into one organization: the Copyright Alliance. This organization represents several major US copyright lobbying organizations. This includes the RIAA, MPAA, BSA, and several major media organizations. Long term observers will likely see where this is going. In their submission (PDF), they laid out several key demands: Establish commitments for the protection and enforcement of copyright, including those that reflect minimum standards established by global consensus (including duration of copyright protection). This point represents what many dub as “policy laundering”. For quite some time, 50 years after the authors death was a widely used copyright length. This can be found in the Berne Convention which establishes the following: The Berne Convention states that all works except photographic and cinematographic shall be copyrighted for at least 50 years after the author’s death This, arguably, represents a global consensus. NAFTA, as you recall, involves the countries of Canada, the US, and Mexico. The question then becomes, what are the countries copyright length? According to Wikipedia, Canada’s length is life+ 50 years. In the US, it is life+ 70 years. In Mexico, the term length is life+ 100 years. In short, the copyright length meets or exceeds a global consensus in all three countries. The question then becomes, what has changed? Lobbyists have been pushing other countries to extend copyright terms. In some instances, even going into the extreme length of life plus 100 years back when Some of the trade agreements were being negotiated. After years of lobbying, a few countries eventually caved to the pressure and extended to life plus 70 years. If life plus 70 years is the goal for this organization, there is only one country that doesn’t have that length of a copyright term: Canada. So that, in and of itself, is a shot across the bow against Canada. Regardless, the language of “global consensus” is extremely misleading. They lobbied other countries, then turn around and call it a global consensus for countries that have yet to cave to the corporate lobbying. What they mean by other “minimum standards” could mean pretty much anything. One possibility is the failed three strikes law policy. Another possibility could be criminal sanctions for circumventing a DRM. That ultimately is a solution looking for a problem. No matter what, however, the global consensus is ultimately a consensus established by the lobby organization and little more. The next point is this: Include effective provisions on technological protection measures and rights management information, which are critical for the growth of legitimate digital distribution models, and only narrow and predictable exceptions to these provisions. This goes back to Digital Rights Management (DRM). Canada has some very strict anti-circumvention laws on the books now. Meanwhile, the US, the Digital Millennium Copyright Act (DMCA) has some of the strictest anti-circumvention laws in the world. The DMCA has been widely cited as the reason why innovation has been hampered in various technological sectors. This includes a manufacturers ability to hamstring independent repair shops for motor vehicles. A manifestation of the movement to fix this problem has become known as Right to Repair. Another common problem is the ability to play DVD’s or BluRay on unauthorized devices such as Linux based computer components (thanks to CSS and BD+, this makes it legally problematic). Over the years, copy protection has proven time and time again to punish the consumer and rewarding the so-called “pirate”. Two great examples of this is the Ubisoft DRM scandal and the Sony Rootkit scandal of 2006. History is littered with examples of this sort of things, but these are two examples. What is suggested here is that the lobby organization wants to crack down on exceptions and ramp up the laws against circumvention. So, in the future, these problems would only be exacerbated as questions around security could see people doing the right thing be punished for speaking out. A third demand is as follows: Ensure effective protection of copyright on the internet, including by: o ensuring adequate rules for secondary liability for copyright infringement similar to those provided by U.S. law; o ensuring the same rules for enforcement against physical goods apply online; o ensuring conditional safe harbors for internet intermediaries that incentivize cooperation with rights holders in addressing infringement through their services. There is a fair number of things being demanded here. The first we can address is basically make the rules for offline copyright infringement match those of online copyright infringement. This is, of course, extremely problematic because there is a world of difference between a song on a CD and a song in an MP3 format. Probably one of the most popular examples over the years is that if I give a CD to someone, I no longer have that CD. If I send an MP3 to someone else, I still have the original MP3 (ergo, a “copy”). In the same vain, the MPAA (Motion Picture Association of America) tried to suggest that physical goods are just like digital goods. This was the subject of the famous PSA that was forced onto consumers back when DVDs was still the biggest way people watched movies at home. As a result, it became the subject of countless memes ever since. Probably the biggest surprise in all of this is the fact that the corporate interests are still trying to push this idea to this very day. After all, the world has changed since Napster came onto the scene more than a decade ago. Kind of puts into perspective how outdated this kind of thinking really is. A second point is that the corporate interests are trying to force US style copyright laws onto other countries. US laws have been widely seen as a very broken system to begin with, so ultimately, that point is a non-starter. The third point is probably the scariest demand. ISPs (Internet Service Providers) have enjoyed what is known as “safe harbour” provisions. It’s one of the few things that is vaguely reasonable in the DMCA. A brief explanation is that if someone downloads an unauthorized MP3 online, ISPs can’t be held responsible. The reason is that it’s impossible to truly track every bit flowing through their networks. They have no knowledge of the download taking place, nor are they a real party to the transaction. They are a neutral entity simply responsibly for maintaining the network. If telecommunication networks could be held liable, we would, at best, be stuck communicating with each other using Morse Code (Dial up connections can use phone lines). This would prove disastrous for innovation and the global economy. So, what will change if the corporations get their demands? Instead of ISPs being little more than dumb networks, ISPs would have to abide by new laws that demand further policing of their networks. This would put enormous strain on the industry and ultimately cause connection prices to skyrocket as ISPs would be forced to pass the costs onto consumers. One excellent example was the fiasco over HADOPI in 2011. When ISPs were forced to abide by the failed three strikes law, prices soared much to the denial of the copyright corporate interests. Whether it’s explicitly a three strikes law the industry wants, something else, or one of many options the industry is after, it’s hard to say based on this point. Regardless, it is likely a policy thought up by an industry that refuses to adapt to an Internet age. One final point we’ll highlight is this: Finally, we note that the Trans-Pacific Partnership diverged from earlier FTAs by including specific language calling for “balance” in copyright systems. While we believe in a “balanced” copyright system, the use of this term means different things to different people and different countries. This concept of “balance” is actively being twisted and used as a vehicle for weakening copyright protections and expanding exceptions beyond the scope of the well-established three-step test found in the TRIPS Agreement and the WCT and WPPT. This has sometimes distorted and undermined the market for copyrighted works and decreased the effectiveness of enforcement. For example, this so called attempt at “balance” has negatively impacted the market for educational publishers and authors in Canada, as noted above. In various other countries, the “balance” mantra is used to push policies that would erode the rights of U.S. creative exporters. Therefore, particularly in an environment of massive infringement and difficulty obtaining effective enforcement for rights, we are very skeptical about including this type of language in a trade agreement, and are concerned that doing so may in fact prejudice U.S. interests. So, ultimately, the lobby organization is arguing that consumer rights are terrible and should be done away with. It’s a pretty straight forward stance that they want copyright to reflect their interests and no one else. This includes consumers, producers (despite their claims) and, well, anyone that isn’t one of the major corporate entities. The mention of TPP might cause some people to wonder what was in the TPP in the first place that the lobby organization didn’t like. Michael Geist himself responded to this with the following: It notes that the TPP included a balance provision and warns against something similar in NAFTA. Ironically, the TPP provision was non-enforceable, stating only: Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 18.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled. As many commentators noted, the “shall endeavour” requirement was very weak. Further, the actual legitimate purposes are hardly controversial as few argue against the basic exceptions identified in the TPP text. Yet despite the weak language and minimalist approach to balance, even that is too much for the Copyright Alliance, which states that it is “very skeptical about this type of language in a trade agreement.” The Copyright Alliance is less skeptical about including copyright term extension, digital lock protections, and requiring intermediary cooperation with rights holders in order to qualify for safe harbours. In short, the trade organization has the position of “do everything I say” with no compromise for anyone else. It may be easy to just brush these demands off as clueless banter. Unfortunately, their ability to bend the ears of politicians and negotiators are well known to be effective. Even though demands such as these are ultimately counter productive, it is noteworthy because this could very well become the next copyright battle in North America. Today’s clueless remarks could be tomorrows disastrous laws, so vigilance is very crucial. We will continue to examine what other lobbying organizations have to say and bring you more on what we find. Drew Wilson on Twitter: @icecube85 and Google+.