Is Re-negotiating NAFTA Opening Pandora’s Box?

Without a refocus on user rights, transparency, and meaningful public input, the agreement will become a bonanza for copyright maximalists

This week Creative Commons submitted comments to the Office of the United States Trade Representative (USTR) regarding negotiating objectives for the modernization of the North American Free Trade Agreement (NAFTA).

NAFTA is the controversial trade pact between Canada, Mexico, and the United States that went into effect in 1994. It aims to eliminate barriers to trade and investment in a variety of sectors including goods and textiles, agricultural products, and petrochemicals. NAFTA also attempts to protect intellectual property by including provisions to enforce copyrights, trademarks, patents, and similar rights. The Trump administration has officially notified Congress of its intent to negotiate changes to the agreement. Last month USTR opened a formal request for comments regarding the objectives for updating NAFTA.

Copyright is global, and held by nearly every single person in the world, enabled by today’s online services and the ubiquity of technology to create new works. With that in mind, copyright laws rightly belong in international agreements, negotiated and debated in public fora, and should consider everyday citizens’ needs and uses along with those of industry and professional creators. Still, governments never seem to miss an opportunity to add additional terms to individual side agreements, ratcheting up restrictions and making a confusing, secretive mess for users.

We urged USTR to ensure that the copyright provisions in NAFTA should not be expanded to create new (and likely more onerous) rules than those that already exist in the agreement. If the copyright provisions must be reconsidered, a negotiating objective should at a minimum be to advocate for stronger protections for copyright limitations and exceptions; user rights should be granted a mandatory and enforceable standing alongside the rights of authors. In addition, the negotiations should be made through procedures that are transparent to the public and which include all stakeholders, especially the public.

Copyright

NAFTA uses as its baseline existing and widely agreed upon international copyright treaties, which already contain extensive requirements that ensure the protection and enforcement of copyright and related rights. Therefore, the NAFTA copyright provisions should not be expanded to create new rules than those that already exist in the agreement. The recent negotiation of the Trans-Pacific Partnership (TPP) showed that when intellectual property is put on the table, there’s a significant push to drastically increase enforcement measures for rights holders, lengthen copyright terms, and demand harsh infringement penalties. Despite the various international agreements that aim to harmonize copyright, individual nations continue to use multilateral trade pacts as an opportunity to add increasingly onerous requirements and further lock up copyrighted works. This kind of venue shopping harms the commons and users by creating a “ladder effect”: increased IP protections are negotiated between a few countries, and then used to pressure other nations to adopt, rather than conducting a fair, public, and international discussion. While the demands of rights holders are addressed, there’s little consideration given to the rights of the public. Limitations and exceptions to copyright are downplayed, or not present at all.

It’s crucial that these rights be recognized and protected, as digital technology and the web has turned everyone with a digital footprint into a copyright user (and content creator) on a daily basis. Protecting and promoting these user rights support not only freedom of speech and access to information, but also educational activities, creative remix, and innovation. Re-negotiating the NAFTA provisions having to do with copyright would do more harm than good if there’s not a significant shift in the balance in favor of the rights for users and the public to reflect the reality of today’s digital users. If the copyright provisions will be reconsidered, a negotiating objective should be to advocate for stronger protections for copyright limitations and exceptions, and to endorse the expansion of a flexible exception such as fair use. User rights should be recognized as a legitimate and productive aspect of the copyright environment, and granted a mandatory and enforceable standing alongside the rights of authors.

Transparency and public participation in negotiations

It’s imperative that NAFTA negotiations be transparent and participatory. The secrecy demonstrated in the recent negotiation of the TPP left civil society organizations like Creative Commons and the broader public at an extreme disadvantage, as only a privileged few stakeholders invited into the closed negotiation circle have had their interests fully considered.

The NAFTA negotiations should be made through procedures that are transparent to the public and which include all stakeholders. Increased transparency and meaningful public participation will lead to better outcomes. We agree with the specific and actionable recommendations put forward by the Electronic Frontier Foundation and OpenTheGovernment.org to improve the transparency of U.S. trade negotiations and their accessibility to a diverse range of stakeholders. These recommendations urge USTR to:

  1. Publish U.S. textual proposals on rules in ongoing international trade negotiations
  2. Publish consolidated texts after each round of ongoing negotiations
  3. Appoint a “transparency officer” who does not have structural conflicts of interest in promoting transparency at the agency
  4. Open up textual proposals to a notice and comment and public hearing process
  5. Make Trade Advisory Committees more broadly inclusive

Now USTR will evaluate the extensive feedback on NAFTA negotiating objectives (over 12,000 comments have been submitted). Canada has already opened a similar public consultation, and it’s expected that Mexico will do the same. It’s a fair question whether these sweeping agreements can actually promote trade and economic activity that is beneficial to a majority of citizens as opposed to a few powerful multinational corporations. But assuming we’re going down this path again, it’s important that negotiators rethink the copyright provisions to protect users and the public good. And it’s absolutely crucial that negotiators lift the un-democratic and counterproductive secrecy that has pervaded most of the recent discussions.