By Emmanuel Legrand
Canada, Mexico and the United States' copyright regimes are moving towards a more unified framework following the decision by the three parties to sign and ratify the new Canada-United States-Mexico Agreement (CUSMA), which will replace the former trade agreement known as NAFTA.
The US ratification was made possible by a last minute deal between the Speaker of the House of Representatives Nancy Pelosi and President Donald Trump. Following years of discussions, representatives from the three countries signed the new agreement on December 10 in Mexico.
The agreement must now be ratified by the country's respective Parliaments. In the US, a vote in the House could take place before the year-end recess, while the Senate could vote in January or February. Mexico’s Senate approved the agreement on December 12 by a vote of 107-1. The Canadian government is expected to propose the House of Commons to ratify the accord at the same time as the US.
Life plus 70 years
The agreement includes an updated, comprehensive chapter on intellectual property, with obligations on copyright and related rights, trademarks, geographical indications, industrial designs, patents, data protection for pharmaceutical and agricultural chemical products, trade secrets, and intellectual property rights enforcement.
Specifically, the agreement calls for a general term of copyright protection of “life plus 70 years” for works of authorship. This means that Canada, which currently has a term of “life plus 50 years”, will have to change parts of its current intellectual property legal and policy framework in this area. Mexico does not need to adapt its law as it already has since 2003 a term of copyright of a 100 years following the death of the author.
The document also recognises "the important role of collective management societies for copyright and related rights in collecting and distributing royalties based on practices that are fair, efficient, transparent, and accountable, which may include appropriate record keeping and reporting mechanisms."
The new agreement includes provisions on Internet service provider (ISP) liability to address online infringement. In particular it paves the way for a US system of copyright liability exemptions via "safe harbours" in the other two countries, although Canada will be able to maintain its current “notice-and-notice” regime. Mexico will have to adapt its legislation.
Support local creators
From Canada's perspective, the modernised agreement preserves Canada’s cultural exception, which, according to the government, gives Canada "flexibility to adopt and maintain programmes and policies that support the creation, distribution and development of Canadian artistic expression or content, including in the digital environment."
"This was a key element in NAFTA," noted the Canadian government in its 'Summary of Outcomes'. "It helps protect Canada’s unique identity and provides greater security for the 650,000 Canadians who work in industries such as publications, broadcasting, and the distribution or sale of books, magazines, film, video and music."
Representatives of the creative community welcome the agreement's provision on copyright extension, but objected to the adoption of USA's system of copyright liability exemptions via "safe harbours".
"A significant impasse has been overcome," said John Phelan, the Brussels-based director general of the International Confederation of Music Publishers (ICMP). "This deal is as crucial for the music industry as it is complex. We would warmly welcome the prospect of copyright term in Canada – it's vital that term there arrives at a level which is standard worldwide. Copyright is the bedrock of creative sectors."
Build a stronger sector
Phelan added that the copyright exemptions for certain online services "are a troubling trait of trade talks. The industry has made every effort to provide digital music and drive its value for songwriters and composers. So-called ‘safe harbours’ risk real regress on music’s value – something we’ll continue to be vigilant about.”
For David Israelite, President and CEO of the Washington, DC-based National Music Publishers Association, CUSMA "includes important copyright provisions that will greatly affect songwriters. We are encouraged by the term expansion for Canadian copyright law that is included in the deal, but remain concerned that the DMCA safe harbours in the agreement continue to devalue creators' work and protect Internet service providers who should be doing more to prevent piracy and infringement."
Music Publishers Canada's Executive Director Margaret McGuffin said that "enacting the term extension provisions of the Canada-US-Mexico Agreement will ensure that Canadian songs and scores continue to be heard daily on the radio, on streaming services, in video games and in film, television and other screen-based productions around the world."
Prior to the signing of the agreement, several Canadian organisations – including rights society SOCAN, Music Publishers Canada, Quebec' music publishers' association APEM, among others – wrote to members of the Parliament, urging them to ratify the agreement. The letter reads: "Adding another 20 years to the life of a copyright means a robust creative sector, more Canadian cultural exports, and the growth of many innovative businesses that have embraced the digital market. It is long past time for Canada to catch up to its international trading partners in this respect."