US White House Initiates 90 Day Notice on NAFTA Re-Negotiations

While it still needs approval in the US, the White House has initiated the 90 day notice to renegotiate NAFTA.

On Thursday, you may have noticed headlines that the White House has initiated the 90 day notice to renegotiate NAFTA. One article on CTV wrote the following:

In a letter sent Thursday to Republican and Democrat Congress and Senate leaders, U.S. Trade Representative Robert Lighthizer said the president “intends to initiate negotiations with Canada and Mexico regarding modernization” of NAFTA.

The letter gives Canada and Mexico a 90-day notice before the negotiations could begin.

Freeland said Thursday that Ottawa has been anticipating the notice for a long time and is ready for NAFTA talks.

“We are ready to roll up our sleeves. We have been from day one,” Freeland told reporters.

For those who try and read tea leaves and signals from Washington, the messaging has been nothing short of a major roller-coaster. US president Donald Trump at one point said he was going to scrap NAFTA altogether. After that, Canadian Prime Minister Justin Trudeau said that renegotiations would involve little more than tweaking. Then, Trump said that big changes won’t even describe the kinds of changes he intends on making. In fact, the changes would be massive. Trudeau’s continued the messaging that it is going to be a minor tweaking still. The latest messaging is that it’s going to be about modernizing the agreement. Modernization might give you a double take considering that NAFTA has undergone changes over the years, but that’s seemingly where we stand now.

For those who are concerned with digital rights, the news about NAFTA may seem irrelevant. Much of the news has been surrounding softwood lumber, dairy, and a hand full of other industries. In fact, the specifics of what is going to be negotiated remains in large part a mystery at this point. However, if one were to be under the impression that there is no way that NAFTA can have an impact on digital rights, think again.

Last month, we reported on the fact that digital rights does, in fact, bubble beneath the surface of the NAFTA renegotiations. The possible items that could be in there include provisions found in the notorious Trans-Pacific Partnership (TPP) agreement. This isn’t just idle speculation, but is based around a leaked draft notice.

So, what are the possible specifics? Here are some of the possible items that we noted last month:

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.

The thing to remember here is that there is always that possibility that things can change between when that draft notification was made and when actual re-negotiations take place. On the surface, the probability of this changing towards something more favourable to digital rights isn’t that great. This is thanks in part because because it seems that copyright isn’t the biggest priority in the renegotiation process. Another reason is that there is always room for US lobbyists to demand more restrictive copyright regimes. This, of course, will come from major movie, music, and software industries in the US.

What we do know is that there is a strong possibility that digital rights could be one of the many things up for grabs in the renegotiation process. The exact form likely won’t be known until negotiators from Canada, the US, and Mexico sit down at the table. So, this is a story we will continue to follow.

Drew Wilson on Twitter: @icecube85 and Google+.

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