How Can NAFTA Get It Right on Copyright?  We Went to Washington D.C. to Find Out

OpenMedia's external legal counsel Cynthia Khoo reports back from collaborating with copyright experts and allies in Washington, D.C., to help craft user-centric copyright principles for an updated NAFTA.

In the spirit of Halloween, a group of copyright experts and civil society advocates convened this October 30-31, 2017, to analyze the frightening copyright proposals on the table in the ongoing renegotiations of the North American Free Trade Agreement (NAFTA). I had the opportunity to attend as OpenMedia's delegate at the invitation of the Washington College of Law (WCL) Program for Information Justice and Intellectual Property (PIJIP), at the American University in Washington, D.C.

The event involved three main highlights, which advanced the work that those who care about digital rights are doing to ensure that an updated NAFTA, and any future trade agreements (looking at you, TPP-11), protect our civil rights and liberties online. Copyright and its influence on the Internet is especially important when it comes to our right to freedom of expression and ability to communicate, share, discuss, innovate, and connect with others online.

1. Establishing Principles on Copyright Balance in Trade Agreements

First, WCL PIJIP hosted a workshop to nail down what ideal principles should be when it comes to ensuring copyright balance in trade agreements. We started by looking at each country's likely positions on copyright in NAFTA, including on issues such as:

• Copyright terms (how long before a work's copyright expires and it joins the public domain);

• Intermediary liability (whether Internet service providers and online platforms can be legally liable for what their users do);

• Online copyright enforcement (such as Canada's notice-and-notice system versus the United States' notice-and-takedown); and

• Anti-circumvention laws (whether it is illegal to break digital locks on copyrighted content, even for reasons such as making books and music or videos accessible to those with disabilities).

We compared the positions of Canada, Mexico, and the United States. TL;DR: none of them were the same, and none of them were good. There wasn't nearly enough, if any, attention paid to protecting or facilitating fair dealing, fair use, users' rights, or the elements of copyright law that are an inherent part of a functioning knowledge-, creativity-, and culture-promoting system that works for all of us, and not just Hollywood industries. Canada came out ahead on a few points, but as we've been adamant, any changes where our copyright laws do have room for improvement (and oh, do they) should occur in a domestic, democratic, consultative process here at home, such as with our upcoming Copyright Act review.

Now came the fun part: crafting what a good copyright provision—one that balances users' rights and the public interest with owners' exclusive monopolies—might look like, if ever we should be so lucky to have such input into an international trade agreement. A lot of this was based on looking at past trade agreements and the wording and provisions they used around copyright, such as international intellectual property treaties administered by the World Intellectual Property Organization (WIPO), the Korea-US Free Trade Agreement, and even the Trans-Pacific Partnership (TPP). It's striking that even though the latter only gave about two lines of lip service to users' rights, fair dealing/fair use, and the public domain—that is still more than what exists in NAFTA right now. (Or so we suspect, given the complete lack of transparency around the text and negotiations). Together, we drafted a set of copyright principles that current and future trade agreements should incorporate to ensure they make sense in a digital environment. We are currently finalizing them, so watch this space!

2. Research: Copyright Openness Benefits Countries’ Economies and Scholarship

Second, PIJIP publicly launched the results of some exciting new empirical research done on copyright, fair use/fair dealing laws, and openness of users’ rights in 21 countries between 1970-2016. The researchers, Sean Flynn and Michael Palmedo (who are also PIJIP’s Associate Director and Assistant Director for Grants and Research, respectively) made the following findings:

• All countries in the study are trending towards more openness for users’ rights

• There is a gap in users’ rights between more wealthy and less wealthy countries, of approximately 30 years on average

• Countries are quickest to create copyright exceptions for the purpose of quotations, libraries, education, and personal/private use

• Countries have not gotten far towards copyright exceptions for transformative use, text and data mining, and computer programs

• Openness of users’ rights in copyright is positively associated with higher creativity and economic development in countries

• Openness of users’ rights in copyright is positively associated with scholarship and creation of new knowledge

For more information, check out PIJIP’s fantastic handout here.  

3. Keynote: NAFTA and the Digital Environment

Third and finally, the WCL hosted an engaging keynote lecture by Michael Geist, IP law professor and Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. Professor Geist emphasized at the outset that NAFTA and international trade agreements are a poor venue at which to decide or create substantive domestic laws, particularly ones with effects as fundamental as potentially curtailing Canadians' right to free expression, and in an opaque process that everyday citizens and even many of their elected representatives are barred from.

Given no choice, however, how do we make the best of it? The presentation continued with memorable examples of how not to do copyright law, including extrajudicial website blocking tribunals, monitoring academics, and condemning schools and libraries for exercising their rights of fair dealing/fair use. Instead, copyright law must retain flexibility that allows each country to decide how their copyright system can best fulfill its core objective: encouraging the creation, use, and building upon of creativity, research, and new works and knowledge.

What we've seen though, said Geist, is that every new agreement tries to strip out that flexibility that copyright is inherently meant to have. This led to a hopeful thought exercise to end the talk: what might Canadian copyright law achieve if we were free to create it outside the shadow of constant pressure from the United States? For better or worse, given the ongoing circumstances, there is the chance we will get to find out.

Cynthia Khoo is a Toronto-based lawyer who focuses on Internet policy and digital rights.