The U.S. just completed its consultation on negotiating objectives in the upcoming NAFTA re-negotiations (the Canadian consultation is open until July 18, 2017). There are well over a thousand comments, but a review of the lobby groups who pay attention to copyright reveals that they hope to use the talks to make significant changes to Canadian copyright law. This was expected – I touched on the trade dimension of domestic reforms in my recent Policy Options piece on the 2017 copyright review – but the extent to which many groups want to toss aside foundational elements of Canadian copyright law may still surprise.
For example, the Copyright Alliance, which represents a wide array of lobby group associations and Hollywood type interests, rejects the inclusion of balance as an objective in copyright law. 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.
While some IP stakeholders such as the Business Software Association are supportive of safe harbours, most others hope to use NAFTA to require significant reforms to the U.S. process and then impose those changes on Canada and Mexico. For example, the RIAA wants Canada to drop the notice-and-notice system and it wants reform of the U.S. notice-and-takedown system as the North America-wide standard. The MPAA similarly cautions against simply using the DMCA as the standard for intermediary liability.
The MPAA also takes aim at Canadian cultural protections, arguing that cultural safeguards should be removed from NAFTA. It states:
The NAFTA is the only U.S. trade agreement currently in force that includes a cultural carveout. Such a carveout is inconsistent with the principles of free and fair trade. Cultural promotion and open markets are compatible and complementary. MPAA is committed to the promotion and protection of cultural diversity and firmly believes that NAFTA parties in the modernization negotiations can effectively rely on the flexibilities built into free trade agreements, including permissible support programs, to promote their cultural interests.
Canada has long maintained the need for a cultural exception in its trade agreements and while the TPP opened the door to exceptions, the MPAA wants it eliminated altogether.
The MPAA also wants Canada to extend the term of copyright to life of the author plus 70 years from the current standard found in the Berne Convention of life of the author plus 50 years. It argues that the “extension of the term of protection for copyrighted works has a direct benefit to the creators of these works, as well as consumers.” It does not mention that the creators are long since dead, that consumers face higher prices with term extension, and that the change would lock-down the Canadian public domain for two decades.
The U.S. lobby groups generally favour exporting U.S. rules to Canada, but not when it comes to fair use. Many innovative countries have adopted fair use (South Korea, Singapore, Israel among them), but the RIAA argues that only the U.S. should have it. Its submission states:
[E]fforts to export the American fair use exception are particularly troubling. In the United States, the fair use doctrine stems from the First Amendment of the U.S. Constitution and codified 150 years of American common law precedent. The American fair use doctrine is therefore unique to the United States. Fundamentally, fair use creates uncertainty out of the U.S. context. The fair use doctrine provides for open-ended exceptions, setting out principles which should be considered by the courts when determining whether a use of copyright material is “fair” under our system and, therefore, permitted. The inherent uncertainty of the scope of fair use creates an uneasy and complicated relationship to the first requirement of the three-step-test, which is limited to “certain special cases”. That is particularly true when fair use is implemented outside U.S. context and history and without the benefit of the 150 years of case law on which U.S. fair use is based.
Interestingly, Drake, one of Canada’s best known recording artists, recently used a fair use argument in U.S. courts to defeat a lawsuit over sampling. It would be particularly troubling if Canadian artists and creators could only rely on U.S. law to defend their creativity. Fair use is an approach that works for all – creators, users, and innovators. For the RIAA to argue that fair use rights should be denied to artists under Canadian law points to the hypocrisy of their submission and why Canadian negotiators need to adopt a strong position defending the domestic copyright balance.