October 1, 2018
Canada and the U.S. reached agreement late yesterday on a new NAFTA (now renamed the U.S.-Mexico-Canada Agreement or USMCA). While much of the focus is on the dairy industry, dispute resolution, and the auto sector, the agreement will have significant implications for intellectual property, digital policy, and broadcasting. It will take some time to examine all the provisions, but the short-hand version is that Canada has agreed to extend the term of copyright, saved the notice-and-notice system for copyright infringement claims, extended the term of protection for biologics at significant long-term cost to the health care, agreed that Internet companies are not liable for third party content, extended border measures on counterfeiting, and promised to drop the CRTC policy that permitted U.S. commercials to be aired during the Super Bowl broadcast.
With few exceptions, the U.S. adopted a Trans Pacific Partnership+ approach with the TPP provisions plus some additional changes it did not get as part of those negotiations. This is notable since Canadian authorities admittedthat the TPP went far beyond any previous Canadian free trade agreement. While the Canadian starting point was presumably the CPTPP, the revised TPP where Canada successfully argued for the suspension of some of the U.S.-backed provisions, Canada caved on that position as the IP and digital trade chapters largely revert back to the TPP model. The only good news from a Canadian perspective is that this includes a carve out for Canada’s notice-and-notice system, which the U.S. acknowledged in the TPP met the notice-and-takedown standard.
The IP chapter opens with balancing language as an objective:
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Yet the major copyright change for Canada is the extension in the term of copyright beyond the international standard of life of the author plus 50 years to life of the author plus 70 years. The term of copyright was never going to hold up a major trade agreement and Canada did agree to an extension in the original TPP. However, the cost will be significant, locking down works from the public domain for decades and potentially increasing educational costs by millions of dollars. From a domestic policy perspective, the change should impact the current copyright review as term extension has been one of the top requests from rights holders and areas of concern for users. The extension shifts the copyright balance in Canada and should be factored into future reforms, including the benefits of extending fair dealing to restore the balance.
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