What They’re Saying: Protecting A Balanced Copyright System In NAFTA Renegotiations

Public interest groups and tech organizations urge the U.S. Trade Representative to continue to preserve existing limitations and exceptions, including fair use and safe harbors.

Re:Create Coalition: “[I]f NAFTA is going to include provisions on copyright…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…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.”

BSA | The Software Alliance: “…NAFTA should ensure that governments have copyright laws that provide meaningful protections for rights holders as well as safeguards to foster the Internet’s continued growth as a platform for free expression, innovation and digital commerce. The intellectual property chapter should provide online service providers with safe harbors from liability for infringing, or otherwise unlawful, content posted by third parties. Such safe harbors require internet service providers (ISPs) to remove infringing content upon notification by a rights holder, but should not be conditioned on any obligation by an ISP to monitor or filter infringing activity, as such obligations would weaken incentives for innovation and threaten the dynamism and values that have made the Internet so valuable.”

Center for Democracy & Technology: “Preserving a balance between protection and use of copyrighted works is fundamental to our freedom of expression and plays a critical role in the United States’ thriving success in the internet economy…Under no circumstance should NAFTA tighten the safe harbor requirements beyond those in section 512 of the Digital Millennium Copyright Act (DMCA), for example, by moving away from an ‘actual knowledge’ standard or by adding provisions requiring hosting providers to monitor or filter user-uploaded content.”

Computer & Communications Industry Association: “To set a global example for modern copyright norms, NAFTA signatories should commit to establish and maintain a balanced copyright system through fair use/fair dealing limitations and exceptions, which will ensure adequate and effective protection of copyright while guaranteeing appropriate flexibility for new technology and innovation…Due to the importance of online intermediaries in the U.S. economy, limiting liability for online service providers has been a consistent element of U.S. international policy for over a decade. As a result, at the start of the millennium the United States entered into numerous trade agreements with roughly a dozen nations that compel contracting parties to provide copyright liability limitations…USTR should continue this policy, and include these safe harbor provisions in NAFTA.”

Consumer Technology Association: “For the Internet to serve its trade-enabling role, and for local entrepreneurs to drive cross- border economic activity, trade negotiators need to ensure predictable liability protections are in place across countries where users and content creators are sharing information on Internet platforms…To promote digital trade and foster vibrant domestic Internet economies, NAFTA parties should include a provision that addresses intermediary liability. By providing safe harbor protections from liability, NAFTA parties will establish an innovation framework for digital trade.”

Electronic Frontier Foundation: “Prescriptive IP rules usually fail to account for developments in technology such as the Internet, or changes in business and social practices such as the sharing economy. Including such rules in trade agreements could inhibit the United States from modernizing its own intellectual property rules in the future…if the renegotiated agreement does contain new or strengthened intellectual property provisions in favor of rightsholders, specifically on copyright, then it is imperative that these are balanced with provisions that also protect the interests of users and innovators. Principal among these is the need to establish the fair use exception to copyright as a minimum standard.”

Engine: “Startups benefit from balanced intellectual property laws that provides incentives to create while still preserving the creative reuse and interoperability that are so critical to innovation. Principles like fair use and limited copyrightability are critical to ensuring that startups and users can benefit from and build off existing works. Fair use and U.S. copyright law, while imperfect, strike the right balance to protect creators and users of copyrighted works. NAFTA should be updated to adopt this set of copyright limitations and exceptions.”

FreedomWorks: “FreedomWorks Foundation urges the USTR to include strong provisions on limitations and exceptions such as fair use in any discussion of copyright law. In short, copyright should be a spur to innovation, not a tool to protect monopoly rents. Fair trade is an important exception that helps ensure the proper balance in copyright law.”

Information Technology Industry Council: “We recommend that the IPR chapter of a modernized NAFTA incorporate…balanced copyright rules that include both copyright protections and limitations and exceptions that underpin digital technologies and ongoing U.S. innovation; require parties to adopt strong copyright safe harbors from liability for online service providers, where they have systems in place to address online infringement…”

Internet Association: “NAFTA should be updated to require governments to adopt a strong set of copyright limitations and exceptions, such as the United States system of fair use, to enable these kinds of innovative uses of copyrighted material. Such rules are missing in Mexico, and would set a gold standard for other countries that threaten to discriminate against U.S. services through unbalanced copyright regimes.”

Library Copyright Alliance on behalf of the American Library Association and Association of Research Libraries: “Copyright exceptions and limitations are critical to the operations of libraries. These exceptions and limitations—either library specific exceptions…or flexible, open ended privileges such as the fair use right…enable libraries to perform their mission of preserving our cultural heritage and making it accessible to the public…NAFTA should include an obligation to enact liability limitations for Internet intermediaries. This obligation should contain the flexibility to adopt either the U.S. or Canadian safe harbor framework. Internet intermediary safe harbors in Mexico would encourage cross border activities that benefit U.S. libraries and their users.”

Organization for Transformative Works: “Intellectual Property law strikes important balances—it must give creators access to exclusive markets while ensuring that commerce, innovation, and creators’ expressive freedoms are not unduly hampered by exclusive rights. The balance in this system depends not only on the granting of exclusive rights, but also on subjecting those rights to meaningful limitations and exceptions. The USTR should be cautious of calls for enforcement mechanisms, lengthy protection terms, and rigid protections that privilege the private interests of IP owners over those of other participants in the IP system, such as users, consumers, intermediaries, technology developers, and fellow creators. The USTR should insist upon meaningful and enforceable provisions that require signatories to foster balance in copyright and related rights systems by providing not only thorough protections, but also robust limitations and exceptions.”

Public Knowledge: “Any copyright system designed to encourage innovation requires limitations and exceptions. Unfortunately, past trade agreements have tended to only mandate the restrictive side of copyright law. Like other members of the Re:Create coalition, Public Knowledge believes that, if NAFTA is renegotiated and if the renegotiated version includes a chapter on copyright, that chapter must have mandatory language on copyright limitations and exceptions, including fair use.”

R Street: “R Street takes the view that free-trade agreements should be designed essentially to liberalize trade, and not to impose duplicative or excessive intellectual-property protections on partner signatories who already have labored to meet their obligations… While it cannot be disputed that imposing more intellectual-property enforcement burdens on partners under NAFTA may favor the interests of one particular set of stakeholders (IP interests), it is unclear how such impositions advance the general cause of free trade.”