Trade negotiators: follow these rules to protect creativity, access to knowledge, users’ rights

Timothy Vollmer

Today over 70 international copyright experts released the Washington Principles on Copyright Balance in Trade Agreements. The document, endorsed by Creative Commons, urges trade negotiators “to support policies like fair use, safe harbor provisions, and other exceptions and limitations that permit and encourage access to knowledge, flourishing creativity, and innovation.”

The principles were collaboratively drafted at a meeting in Washington, D.C. last month, with input from a wide range of legal academics and public interest organisations from Canada, Mexico, and the United States. The principles are released to coincide with the fifth round of talks of the renegotiation of NAFTA, which takes place this week in Mexico City.

Signers lay out the following copyright principles to ensure consumers’ digital rights:

  • Protect and promote copyright balance, including fair use
  • Provide technology-enabling exceptions, such as for search engines and text- and data-mining
  • Require safe harbor provisions to protect online platforms from users’ infringement
  • Ensure legitimate exceptions for anti-circumvention, such as documentary filmmaking, cybersecurity research, and allowing assistive reading technologies for the blind
  • Adhere to existing multilateral commitments on copyright term
  • Guarantee proportionality and due process in copyright enforcement

In the lead up to the renegotiation of NAFTA, we urged negotiators not to expand the copyright provisions to create new (and likely more onerous) rules than those that already exist in the agreement. We said that 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.

But no one (or more accurately, no one from any public interest or consumer rights organisation) knows what’s in the agreement. NAFTA, like TPP and other trade agreements before it, is being negotiated completely in the dark.

It’s safe to assume that copyright and other intellectual property rights will continue to be included in bilateral and multilateral trade negotiations, so it’s imperative that the negotiations be radically reformed to make the proceedings transparent, inclusive and accountable. We believe it is unacceptable that binding rules on intellectual property, access to medicines, and a variety of other trade-related sectors will be reworked within a process that is inaccessible and often hostile to input from members of the public.