Internet free speech is not typically an issue associated with trade agreements, but a somewhat overlooked provision in the newly-minted U.S.-Mexico-Canada Agreement (USMCA) promises to safeguard freedom of expression by encouraging Internet companies to resist pressure to remove content. My Policy Options op-ed notes the USMCA’s Internet safe harbour rule – modelled on U.S. law – remedies a longstanding problem in Canada that left large Internet platforms reluctant to leave third party content such as product reviews, blog posts, and social media commentary online in the face of unsubstantiated complaints.
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Setting the Standard?: How the USMCA Quietly Reshapes Global Digital Trade Agreements
The United States-Mexico-Canada Agreement (USMCA) is more than just an updated version of the North American Free Trade Agreement. With the inclusion of a digital trade chapter, the deal sets a new standard for e-commerce that seems likely to proliferate in similar agreements around the world. My Washington Post op-ed notes that negotiators have touted the benefits of addressing modern forms of commerce, but the reality is that the USMCA digital trade chapter raises many concerns, locking in rules that will hamstring online policies for decades by restricting privacy safeguards and hampering efforts to establish new regulation in the digital environment.
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The USMCA and Copyright Reform: Who is Writing Canada’s Copyright Law Anyway?
Canada’s year-long copyright review has thus far featured dozens of witnesses from creators such as singer Bryan Adams to telecom giants Bell and Telus. While the review is designed to help Canadian policy makers craft a roadmap for future reforms, the release of the U.S.-Mexico-Canada Agreement (USMCA), the successor to NAFTA, represents a significant detour as it contains a detailed intellectual property rights chapter that effectively cedes many key issues to U.S. trade negotiators.
My Globe and Mail op-ed notes that in the weeks leading up to the conclusion of the trade pact negotiations, most of the attention was focused on supply management and the dairy sector, the threat of tariffs on the automotive industry, and the future of dispute resolution provisions. Yet once the secret text was released just after midnight on Sunday, the mandated reform to Canadian copyright law became more readily apparent.
Notice the Difference?: Supreme Court Rules ISPs Can Be Compensated for Copyright Costs
Policy makers have long struggled to strike a fair balance in crafting rules to address allegations of copyright infringement on the Internet. Copyright owners want to stop infringement and the right to pursue damages, Internet subscribers want their privacy and freedom of expression rights preserved in the face of unproven allegations, and Internet providers want to maintain their neutrality by resolving the disputes expeditiously and inexpensively.
My Globe and Mail op-ed notes that the Canadian system for online infringement was formally established in 2012 and came into effect in 2015. The so-called “notice-and-notice” approach grants rights holders the ability to send notifications of alleged infringement to Internet providers, who are required by law to forward the notices to the relevant subscriber and to preserve the data in the event of future legal action. The system does not prevent rights holders from pursuing additional legal remedies, but Internet providers cannot reveal the identity of their subscribers without a court order.
The First Rule of Copyright Reform: Don’t Mess With Free Speech and Net Neutrality
Countries around the world have been actively rethinking copyright for the digital age, grappling with the potential for the Internet and new technologies to facilitate new creativity and business models as well as the need for fair remuneration for content creators. The European Union has been particularly active on the issue with a two-year copyright reform process that was billed as providing an update for the digital environment.
As the process neared its conclusion earlier this month, the European Parliament experienced the equivalent of a copyright political earthquake. My Globe and Mail op-ed notes that hundreds of elected officials shocked observers by voting against quick approval of a reform package that would have led to blocked access to thousands of legitimate works through upload content filters alongside new “link taxes” that would have charged sites for linking to news stories online.
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