US President Donald Trump recently made a surprise announcement that he is terminating NAFTA. That has copyright implications.
Reports surfaced yesterday saying that the US president intends on scrapping NAFTA (North American Free Trade Agreement). The announcement took Canadian Trade Minister Chrystia Freeland off guard. This is because she spent weeks in the media assuring Canadians that NAFTA talks are positive and that things are moving along smoothly. That announcement ultimately forced her to rush to Washington to try and make heads or tails of what is even going on.
To be fair, Trump is notorious for simply saying things without thinking. Many questions were raised such as what the Mexico agreement even looks like and what are the final details. Some even point out that it is unlikely the details were even fully hammered out in the first place and that the announcement might be more of a political stunt. Whatever the situation or reasons behind them may be, few are disputing the fact that Canada is ultimately being placed in a tough spot – especially given the messaging in the first place.
Of course, the impact of scrapping the deal has wide-ranging consequences. Not all of them are necessarily bad. As we pointed out last year, there are a host of digital rights issues on the table for the agreement. This includes tough anti-circumvention laws, lengthening of copyright terms to life plus 75 years, and the notoriously abused notice-and-takedown system.
Currently, Canada has a notice-and-notice system. It’s been a system that has worked quite well at deterring copyright infringement, though in recent years, rights holders have been using the system to demand payments even though that is not the purpose of the system. While the abuse of the notice-and-notice system has been plaguing Canadians, the notice-and-takedown is widely regarded as a far worse system. This is because it has been used as a method of censorship more than anything else whether intentional or not.
Just recently, one copyright troll attempted to take down the Electronic Frontier Foundation (EFF) with an obviously improper takedown notice. As we pointed out during that report, while the EFF clearly has the resources to fight such notices, not everyone does.
Such tough copyright provisions have been pushed hard by the likes of the Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA). At the time, those organizations were seeing their laundry list of failed policies such as ISP level censorship and three strikes laws going down the tubes when trade agreements were going down in flames that contained those provisions. This more recent effort is obviously a way to try and shoe-horn some of those notorious policies into another agreement in a last ditch effort to sneak the laws past regulators and lawmakers.
Those tough copyright laws were also recently highlighted by Laura Tribe of Open Media who questioned why such provisions are in trade agreements in the first place. This, of course, is not a new question as many vocally questioned why copyright law provisions are found in trade agreements like the Comprehensive Economic and Trade Agreement (CETA) and the old Trans-Pacific Partnership (TPP) agreement.
Unfortunately, in a day of secret trade agreements and privileged access among major corporate interests, such activities have become the norm these days. Such laws are fiercely opposed by local populations in many countries. Additionally, lawmakers are increasingly skittish about introducing large copyright packages into government for fear of upsetting the population thanks to simply listening to corporate interests. The risk and reward for such moves has become quite problematic for lawmakers, so, understandably, they are often reluctant to push for such one-sided laws in the first place. So, lobbyists find themselves trying to turn various secret trade agreements into copyright Trojan Horses in an effort to sneak the laws onto the books.
If the Trump administration really intends on scrapping NAFTA in the first place, that would undo the lobbying effort that took place all last year. It is unlikely those backing those law proposals would be pleased.
Unfortunately, this story does have a lot of confusion. What does the US/Mexico trade agreement look like. Is NAFTA really scrapped or is this political bluster? What does the US Congress have to say about all of this and would they block certain decisions made by the president? Will the US/Mexico trade agreement largely remain the same to include Canada? Is there going to be a separate bi-lateral trade agreement? What are the objectives of Canada and the US in these negotiations?
At this stage, we have more questions then answers. Ultimately, we need to wait for the dust to settle in order to get a reasonable picture of the situation. It is, after all, tough to analyze a situation when there are so many unknowns.