SMCA Set To Export U.S. Copyright Law to North American Neighbors
The United States-Mexico-Canada Agreement (USMCA) was passed by the U.S. Senate on January 16, 2020 and will be signed by President Trump today. The treaty, which renegotiates and cancels the 1994 North American Free Trade Agreement (NAFTA), is expected to dramatically affect many areas of law of its three member states.
With respect to copyright law, the USMCA largely exports copyright standards from the United States. Once it is implemented, content creators and owners, Internet Service Providers (ISPs) and copyright professionals can expect the laws of Mexico and Canada to more closely resemble those of the United States with respect to liability and safe harbors for ISPs, the term of the life of a copyright, rights for sound recordings used in interactive streaming and anti-circumvention measures.
ISP Safe Harbors
The USMCA requires its member states to establish a framework for addressing both online infringement and limitations of liability for ISPs that will be familiar to U.S. practitioners. Specifically, it obligates each member state to “ensure that legal remedies are available for right holders to address [online] copyright infringement and establish or maintain appropriate safe harbors [for] Internet Service Providers,” by providing for incentives to ISPs that cooperate with efforts to deter infringement and by providing safe harbors to ISPs for user transmission, storage or linking to infringing content which the ISP does not “control, initiate or direct.”
Further in keeping with U.S. law, the USMCA requires implementation of procedures for takedown notices and counter-notices and ISPs will be liable if they do not take down unauthorized content “upon obtaining actual knowledge of the copyright infringement or becoming aware of facts or circumstances from which the infringement is apparent, such as through receiving a notice of alleged infringement from the right holder or a person authorized to act on its behalf,” similar to the willful blindness/red flag standards developed in United States.
In additional parallels to U.S. law, ISPs will not be able to avail themselves of the safe harbors if they do not implement policies for terminating users who repeatedly infringe, interfere with measures to protect content or vicariously infringe, however safe harbors are not conditioned on ISPs monitoring or affirmatively investigating potential infringement.
Life of Copyright Term
The USMCA also exports longer copyright terms from the United States by requiring its member states to implement a minimum term for the life of a copyright of “not less than the life of the author and 70 years after the author’s death.” Where the term is based on a period “other than the life of a natural person,” the USMCA requires that the life of the copyright shall be “not less than 75 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or failing such authorized publication within 25 years from the creation of the work… not less than 70 years from the end of the calendar year of the creation of the work, performance, or phonogram.”
Although these new rules will not require extension in the United States – where the copyright term is either 70 years from the author’s death or, in the case of an anonymous work, a pseudonymous work, or a work made for hire, the earlier of 95 years from the year of first publication, or 120 years from the year of its creation – the term of copyright in Canada, which right now is for the life of the author plus 50 years, will have to be extended to comply with the new treaty.
The USMCA also establishes uniform rights for streaming music by requiring that member states provide creators of sound recordings the exclusive right to authorize reproduction of their works in any form, including electronic form, and by requiring that authors and performers hold rights to license public distribution or performance of their works through interactive streaming services.
Notwithstanding these provisions, the treaty states that performers’ right to prohibit “analog transmissions and non-interactive free over-the-air broadcasts… is a matter of each [member state’s] law.” This reflects another accommodation to U.S. copyright law, which does not require terrestrial radio stations to license performance rights for the performance of sound recordings.
Finally, the USMCA implements uniform standards to combat the circumvention of technological measures designed to protect digital content from infringement. These new standards are also akin to the anti-circumvention laws in the U.S. Digital Millennium Copyright Act.
As the USMCA nears ratification and implementation and the copyright laws in Mexico and Canada develop to further resemble copyright law in the United States, it is important for content companies and ISPs alike to understand the new treaty’s impact on their rights and remedies across North American borders.