Re:Create Comments on NAFTA Negotiations

Pursuant to the request for comments published in the Federal Register by the United States Trade Representative (“USTR”) at 82 Fed. Reg. 23,699 (May 23, 2017) Re:Create submits the following comments on 2(h) 1 and 2(i) 2 and the interrelation between the two. Additionally, these comments are a formal notice of our intent to testify at the associated hearing and these comments should be considered the written summary of our oral testimony at the upcoming hearing.

Re:Create is a coalition founded in 2015 to educate policymakers on the positive impact the Internet has had on creativity and innovation over the last 25 years. Collectively, the members of Re:Create operate over 100,000 libraries visited by the public 1.5 billion times per year; fight censorship by repressive regimes globally; provide platforms that enable music and video content to reach a global audience; create new and interesting works of art, literature and video enjoyed by wide audiences; invest in new startups and entrepreneurs; and generate billions of dollars in revenue for the motion picture, recording, publishing and other content industries. While our individual organizations maintain diverse views of specific issues, we are united in our overarching respect for copyright and concern for its future.

Our members are the American Library Association, Association of Research Libraries, Center for Democracy and Technology, Computer and Communications Industry Association, Consumer Technology Association, Electronic Frontier Foundation, Engine, FreedomWorks, Harry Potter Alliance, New America’s Open Technology Institute, Organization for Transformative Works, Public Knowledge, and R Street Institute. Most of them are individually or jointly filing comments in this docket and we refer you to all of their comments. We are also filing these comments on behalf of the coalition as a whole.

First, if NAFTA is going to include provisions on copyright, which appears to be your intent based on including trade-related IP rights issues and digital trade issues, then it is imperative that the agreement include strong provisions on limitations and exceptions to copyright, such as fair use. The economic implications of failing to include strong fair use protections are profound, especially given the propensity of the USTR to negotiate strong copyright protection and enforcement in past agreements, including NAFTA. The Internet Association, in a recent White Paper, said,

A strict regime of strong copyright protection and enforcement – without limitations and exceptions like the ‘fair use’ of copyrighted material – would doom the internet economy and U.S. innovation leadership. 3

We agree with the Internet Association. Fair use adds $2.8 trillion to the U.S. economy or approximately 16% of G.D.P. 4 Fair use benefits 18 million workers which is 12.5% of the American workforce. 5 In 2014, America exported $368 billion in fair use based goods and services, a 21% increase from 2010. 6 Simply put, the fair use based economy is one of the largest and fastest growing parts of the American economy, and has become a cornerstone of not just our global digital leadership, but global economic leadership as well.

Our trade negotiation strategy has started to recognize the importance of the fair use economy. We were pleased to see language included in the Trans-Pacific Partnership that recognized fair use rights and the role they play.7 However, this language does not go far enough. If NAFTA includes these provisions on copyright, we would recommend the word “endeavor” is deleted from the first sentence. The inclusion of “endeavor” paired with strong mandatory enforcement and protection provisions in the rest of the chapter does not properly protect 16% of the U.S. economy and 18 million jobs. This created an agreement whose copyright provisions were likely do harm to U.S. Internet companies, startups, and consumers. Potentially, it could have led to countries adopting copyright laws in compliance with the agreement that permits them to outlaw Internet search, machine learning/artificial intelligence applications, and cloud-based technologies, prevent teachers from using online videos in the classroom, prevent libraries from updating their collections for the digital age, cause a lack of capital investment in Internet startups and threaten criminal actions for legitimate online businesses based in the U.S., amongst other problems. We should not continue to make this same mistake in international trade agreements, and strengthen copyright language on fair use to make it mandatory.

Additionally, we want to encourage the USTR to have a more inclusive and transparent process that brings all stakeholders to the table, including the public. The secret nature of the negotiation of trade agreements creates an environment of public distrust. Past agreement provisions that often favor incumbent and legacy interests in the copyright industries, to the detriment of small business, startups, libraries, consumers, and users alike only increase this distrust. Most Americans are using the internet and interacting with copyright law on a daily basis. It influences our fundamental rights under the Constitution, especially the freedom of speech, beyond the economic issues. The public has the right to know, comment on and be involved in the process of drafting such provisions that will have a profound impact on these rights.

1. “Relevant digital trade issues that should be addressed in the negotiations.” at p. 23699
2. “Relevant trade-related intellectual property rights issues that should be addressed in the negotiations.” at p. 23699

3. “Modernizing NAFTA for Today’s Economy,” Internet Association. June 6, 2017. At p. 2.

4. Communications Industry Association, Fair Use in the U.S. Economy: Economic Contribution of Industries Relying on Fair Use (CCIA: 2017) at p. 3.

5. Id.

6. Id.

7. Trans Pacific Partnership Final Text, Chapter 18, Article 18.66: “Each Party shall endeavour to achieve an appropriate balance in its copyright and related rights system, among other things by means of limitations or exceptions that are consistent with Article 19.65 (Limitations and Exceptions), including those for the digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment’ news reporting’ teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled.”