A Mix Of Good And Bad Ideas In NAFTA Replacement

Let's start with the simple concept that it's not at all clear why intellectual property and intermediary liability issues should even be in various free trade agreements, other than to acknowledge that the legacy copyright industry has spent decades demanding that they be included in those agreements. I've mentioned it many times in the past, but the book Information Feudalism should be required reading on this subject, showing how copyright interests effectively hijacked the international trade agreement process to force through domestic policies they wished to have. The internet community mostly ignored the trade agreement process for years, allowing the RIAAs and MPAAs of the world to run rampant and get more or less whatever they wanted in smokey backrooms, before running home to Congress demanding that we pass new laws to "live up to our international obligations."

When NAFTA was originally passed, this practice wasn't as common. Nowadays, it's more or less considered mandatory to include these issues in trade agreements. This is unfortunate for a large number of reasons, but it does mean that if these issues are going to show up in trade agreements, at least they ought to come out in a way that isn't harmful.

And that takes us to NAFTA, which our current president demanded be renegotiated for no clear reason other than he was sure it was bad and we were being ripped off. And, voila, we now have a new agreement called the USMCA agreement designed to replace NAFTA (though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least *something* that is pronounceable). And, because the RIAA and MPAAs of the world forced these issues into trade agreements, this new USMCA has a bunch of issues that have literally zero to do with "trade" but could have pretty widespread impacts on innovation and the internet.

Michael Geist has the best overview I've seen of the agreement, highlighting both the good and bad aspects of the agreement. On the bad side of the ledger, it forces Canada to extend its copyright terms from "life plus 50" to "life plus 70." Thankfully, it appears the weird USTR confusion over the earlier idea that it was going to require life plus 75 years is now gone. But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason. But it's also bad for the US and Mexico in that it effectively blocks any chance of rolling back copyright terms to more reasonable levels (a proposal that even the US Copyright Office appeared to support in years' past).

Also bad: expanding the data protection term of biologics. This is something that the US has pushed for in other agreements over the years and it's really dangerous for basic science and innovation in the drug space. Big pharma companies want it because it allows them to extract monopoly rents, but it harms our ability to actually understand the efficacy of drugs and to make better drugs. We've also discussed how this can lead to real harm in silencing people pointing out health risks of certain drugs.

We also remain concerned about the vague "anti-counterfeiting" language that has been used in the past to justify some truly draconian policies that could create huge problems for innovation and privacy.

On the more neutral-to-possibly-bad side of the ledger, the agreement does allow Canada to retain its current "notice-and-notice" copyright policy, as opposed to a "notice-and-takedown" policy for copyright infringement that both the US and Mexico have. This is good, because Canada's notice-and-notice policy was the result of many years of difficult negotiations and an attempt to do something not as draconian and problematic on questions of free speech than the notice-and-takedown system that we see abused nearly every day here in the US and elsewhere. Unfortunately, what puts this in the "neutral-to-possibly-bad" category is that Canada is only allowed to keep notice-and-notice because it's effectively grandfathered in. The agreement more or less blocks the US or Mexico from moving to such a system.

This is ridiculous. Just as we're getting evidence of how much better a system notice-and-notice is compared to notice-and-takedown, suddenly the US and Mexico will be barred from moving to such a system, even if the evidence shows that it's better for everyone? That makes no sense at all.

On the neutral-to-possibly good side of the ledger, despite concerns that it was missing in earlier drafts and reports, the agreement does include a provision on what they refer to as "limitations and exceptions," but which we note are really user rights such as fair use. It's good that this is there. But... it's less good that it uses the traditional "three steps test" found in Berne Convention. That's concerning because at least some interpret the three step test to limit fair use (and some even argue -- incorrectly -- that US fair use is not permitted under the three step test). So, the "good" part is that the agreement includes something on user rights, but the bad part is that it defaults to the three step test which could be used to significantly limit just how fair use is applied.

Finally, on the "good" side of the ledger, the USMCA does provide language establishing strong intermediary liability protections:

no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

This is useful, especially as CDA 230 and DMCA 512 are under attack. Again, I'm disappointed that we should need to use "trade agreements" to argue this point, but since others are trying to undermine intermediary liability through trade agreements, there needs to be some pushback, and this does establish that in a clear manner. Hilariously, a former RIAA exec who was instrumental in getting copyright expansions placed into trade agreements around the globe is now whining about how awful it is that intermediary liability protections are found in this new agreement, citing concerns raised by plenty of people who support these protections, but who in the past protested efforts to expand copyright rules through those trade agreements. What a hypocritical position for him to take. Dude, you were the one who forced these issues into trade agreements: don't freak out and cry about it when you face some level of pushback in the form of policies you dislike. You made your bed.

In the end, again, it's disappointing that these issues should be in a trade agreement at all. None of this really has anything to do with "trade" in the traditional sense. But they are in this agreement, and thus we should hope that they get the various issues right. The inclusion of intermediary liability protections is clearly a good result if you must include these kinds of provisions, but the copyright and biologic expansions are still incredibly problematic. Unfortunately, it seems likely that the response from the USTR or anyone else will be "well, you win some, you lose some" rather than fixing the problems.