US Trade Rep Appears To Misreport Its Own Trade Agreement To Include Copyright Extension

from the or-maybe-not dept

Soooooooo, you’ve probably heard the news on Monday about how the Trump adminstration had struck a preliminary trade agreement with Mexico to replace NAFTA. Most of the attention over the deal has to do with the lack of Canada being a part of it, with Mexico making it clear it still thought that this was a new deal with both the US and Canada and President Trump repeatedly acting as if this deal was a “take it or leave it” deal for Canada, and if they left it, it would just be US and Mexico.

There will, of course, be plenty of time to dig into the details of what’s in the actual agreement, but on stuff that matters to us, it already looks bizarre. The USTR put out a “fact sheet” about the intellectual property part of the agreement and it’s causing quite a bit of consternation. In particular, it claims that copyright will be extended to life+75 years. Literally no one has been asking for this. While the movie and recording industries have pushed to extend copyrights in the past, this time around, they more or less acknowledged that it was a bridge too far to keep extending copyrights this long, and some have even expressed a willingness to shorten copyright terms.

But there’s been a lot of confusion about what the “life+75 years” even means here — and it now seems quite likely that the USTR simply misunderstood its own agreement (yes, really). Current in the US, for works made for hire or corporate works, copyright lasts 95 years, and for those made by individuals, it’s life+70 years. In Mexico, it’s been an upward ratchet from life+50 years, to life+75 years, to life+100 years as of 2003. There were some stories that during TPP negotiations, Mexico had pushed for life+100 years in the US as well, but that seemed like a non-starter.

So why would the USTR give an okay for life+75 years when basically no one in the US is still pushing for such a thing, and in fact seem to be in general agreement that, if anything, the term should go in the other direction? Either the USTR negotiators have no idea what they’re doing (possible!), don’t realize why this is a big deal (also possible) or are misreporting what’s actually in the agreement. It appears the last one is likely. While the USTR told reporters on a call that they absolutely mean extending copyright to life+75 years, after that, USTR representatives started claiming that this is not an extension of copyright, but was merely supposed to be setting the floor on copyright terms of 75 years, not “life plus 75 years,” in which case copyright wouldn’t change in either country. But, because this administration appears to be so clueless, someone at the USTR may have taken this news and mistakenly claimed it was now life plus 75, rather than a 75 year floor.

This does not inspire very much confidence in this USTR.

Either way, if this really is an attempt to extend copyright, at some point this would need to come back to Congress to change the law, and that might be a pretty big fight on their hands, no matter how what the administration foolishly agreed upon in this preliminary agreement.

Other aspects of the IP section are also troubling, as it all seems focused on the belief that more draconian patent, copyright and trademark laws and enforcement are what’s most desirable:

The new IP Chapter will:

  • Require full national treatment for copyright and related rights so United States creators are not deprived of rights in foreign markets that domestic creators receive.
  • Provide strong patent protection for innovators by enshrining patentability standards and patent office best practices to ensure that United States innovators, including small- and medium-sized businesses, are able to protect their inventions with patents. 
  • Include strong protection for pharmaceutical and agricultural innovators. 
  • Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information. 
  • Establish a notice-and-takedown system for copyright safe harbors for Internet service providers (ISPs) that provides protection for IP and predictability for legitimate technology enterprises who do not directly benefit from the infringement, consistent with United States law.
  • Provide important procedural safeguards for recognition of new geographical indications (GIs), including strong and comprehensive standards for protection against issuances of GIs that would prevent United States producers from using common names. 
  • Enhance provisions for protecting trademarks, including well-known marks, to help companies that have invested effort and resources into establishing goodwill for their brands. 
  • Includes 10 years of data protection for biologic drugs and expanded scope of products eligible for protection.

The “full national treatment” details will be interesting to see, but it looks like an attempt to backdoor in a performance right (which most other countries have, but the US has mostly avoided) for musicians. The various “strong protection” lines about patents is problematic, as that generally means more patent trolling. And the biologics data protection stuff was a key point of disagreement in the TPP negotiations, with the US pushing for longer terms, and other countries (such as Australia) pushing strongly for shorter terms. The whole “data protection for biologics” is a way of locking up drugs that could save lives even though they don’t have patent protection. Is a dangerous idea, but unfortunately, the USTR remains the home of people who only want to expand protectionism, rather than actually supporting competition.

In the end, the details here really matter a lot — and we don’t have them. Furthermore, this administration has an extensive history of not presenting things particularly clearly or accurately. But as a first pass, these “key highlights” the USTR put out suggest an agreement that is out of touch and dangerous for American innovation. Congress should do its job, as outlined in the Commerce Clause, and not let this agreement go forward if it matches what the USTR is now claiming.

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Comments on “US Trade Rep Appears To Misreport Its Own Trade Agreement To Include Copyright Extension”

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49 Comments
Anonymous Coward says:

Re: Re:

I have to agree that the reason is greed, pure and simple. The original 14 years with an optional renewal was also performed during a time when communications was far more limited than it is today. Yet, with our vastly improved speed and ability to communicate, somehow we have to extend copyright to absurd durations in order to allow the creators to make a profit? Although that makes me wonder. The actual timeframe in which a creator profits from a new work is actually a fairly short timeframe, far shorter than the duration of the copyright. So perhaps, it’s overly simplistic to claim that greed is the motivation. I’m thinking that perhaps control is the actual motivation.

Anonymous Coward says:

Re: Re: Re:

I’m thinking that perhaps control is the actual motivation.

When you can’t be the gatekeeper anymore, you may as well put up toll booths.

The whole point is to limit what counts as "new" so that everyone, despite having extremely affordable distribution methods avaiable to them, has to play to the middlemen’s tune to participate. Losing their vast power after being made irrelevant by advancing technology is something they will fight to the death for.

Seegras (profile) says:

Re: Re:

No idea. But there were people even in 1841 who realized what an extension beyond life duration would mean: An inheritance hell, where every heir can veto publication, and only all heirs together can publish or sell licenses. In other words: destruction of culture.

http://homepages.law.asu.edu/~dkarjala/OpposingCopyrightExtension/commentary/MacaulaySpeeches.html

Anonymous Coward says:

Re: Re: Re: Re:

I’d be okay with a 14-year automatic copyright.

Automatic copyrights that people didn’t want can be a serious problem. 99% of the time, you can quote or remix what someone posted online, but then there’s the unpredictable 1% who might freak out and try to sue. Requiring people write "copyright (YEAR)" isn’t an unreasonable burden; most of the copyright-fanatics have an endless supply of ©’s already, and only by knowing the year of creation can we determine when the copyright should end.

"Automatic" these days might be nothing more than a software option, a camera preference that sets a copyright flag in your EXIF data. It wouldn’t require people to have a constant stream of communication to the library of Congress.

That One Guy (profile) says:

Re: Re: Re: "It's... probably in the public domain...?"

I’d argue for registration from the start to better avoid the orphan works problem which already plagues the system.

If it’s clear who owned it, when it was originally created and when exactly it’s no longer covered and is in the public domain a lot of problems could be avoided. If you only need to register if you want the extension then it seems you’d still have the current problems for works which weren’t considered valuable enough for that.

Yes works would technically be in the public domain and available for use by all sooner, but if people can’t know for sure then you’d still have people avoiding use ‘just in case’.

orbitalinsertion (profile) says:

Re: Re: Re: Re:

They weren’t paying pre-internet. And despite the fact that copying an infinite good results in no actual losses, we can generously pretend they are actual losses, and they amount to a tiny percent. This does not result in non-payment to artists whatsoever. And these asshats get a “tax” on all blank media ever sold, despite the fact that a whacking great chunk of said media is not used for recording any copyrighted material whatsoever.

They don’t pay the artists, because they pay themselves. They are screwing the artist and the consumer, and it is truly sad for those of you who cannot figure this out. Both artists and consumers would have it better off without these gatekeepers.

Not that this matters, since i think you are committed to your line of bullshit no matter what. In no possible universe does the casual infringer hurt anyone’s income. Spending money on threats and lawyers, on the other hand,,, pricey.

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:

That is not what they do at Burning-Man.

On the other hand, it might be competitive to the WWE, and probably more entertaining. Can you build a straw man that will fight another straw man, with flames, and WIN? Creativity, action, adventure, eye-candy for TV, and FLAMES. More than the WWE delivers.

And to satisfy Mexico, they could wear weird masks.

(It’s likely that the ‘straw men’ will be robots encased in straw, and susceptible to fire (cardboard or paper laminates instead of metal or plastic frameworks) and lots of employment as new ‘straw men’ would need to be built for every match, of which there could be a lot, as no one would need rest or recuperation time)

I expect royalty checks of this comes to fruition.

ryuugami says:

Re: Re:

If I infringe copyright on someone’s work, they still have it. They can use it, they can sell it, they can build on it.

If copyright is extended, and work is taken from or blocked from entering the public domain, the public doesn’t have it anymore. We can’t use it, we can’t sell it, we can’t build on it.

Unlike copyright infringement, no stupid analogies or stretching of definitions to and beyond the breaking point are needed — extension of copyright is theft, on the grandest scale of all: stealing from the entire world, all of us and our descendants.

Anonymous Anonymous Coward (profile) says:

Trade Agreement

I noticed that there was no mention of payment for Trumps’ wall. Did Trump cave? Or is there some ‘hidden’ provision that makes the payments for ‘something else’. The press hasn’t mentioned yet.

For that matter, Trade Negotiations have a greater security clearance than the Nuclear Codes, so what else don’t we actually know?

That One Guy (profile) says:

"Oh darn, I guess we have no choice but to raise it again..."

While the movie and recording industries have pushed to extend copyrights in the past, this time around, they more or less acknowledged that it was a bridge too far to keep extending copyrights this long, and some have even expressed a willingness to shorten copyright terms.

And I’m sure they’d just be absolutely crushed if, thanks to a trade agreement and ‘obligations’ arising from it they had to raise the duration again, despite the fact that they really didn’t want to, honest.

Claiming that they think copyright shouldn’t be extended again is one thing, but it strikes me as rather foolish to ignore the extensive and consistent push for an ever expanding copyright law in the US and simply take them at their word that they’ll be good this time and actually let something enter the public domain in the US.

Or put simply: I’ll believe it when I see it happen, and not a second sooner.

Anonymous Anonymous Coward (profile) says:

Re: "Oh darn, I guess we have no choice but to raise it again..."

I think the MAFFIA’s are conflicted. On one hand they want money and control, and maybe not in that order. On the other hand public perception might wind up mitigating everything they want.

They have done enough shitty things that they may perceive that public perception of them is turning against them, and that regardless of how much they contribute to legislators campaigns, there might be enough backlash to undo them. Now whether that backlash turns into reverting copyright to reasonable terms, I doubt it, but hope so.

Like you, no breath holding here.

ECA (profile) says:

Anyone Know about NAFTA..

A strange fact(s)..
To replace/update the International freeway between both countries..NOT FINISHED/./
Taxes and Tariffs Into the USA from both sides, WHEN there isnt SUPPOSED TO BE ONE..Bush alone added a 25% tariff to all wood products Brought into the USA..(for some odd reasons)

Allot of things worked BEFORE the Wars..and things have gotten abit out of hand in Mexico.

Anonymous Coward says:

In Mexico, it’s been an upward ratchet from life+50 years, to life+75 years, to life+100 years as of 2003. There were some stories that during TPP negotiations, Mexico had pushed for life+100 years in the US as well, but that seemed like a non-starter.

So why would the USTR give an okay for life+75 years when basically no one in the US is still pushing for such a thing, and in fact seem to be in general agreement that, if anything, the term should go in the other direction?

Possible, stupid suggestion: maybe it’s something Mexico wanted? I know this may sound like an odd idea from an American perspective (especially under a Trump administration), but not everything in a trade agreement is supposed to be for the benefit of the richer, more powerful country. Sometimes, you have to throw in things that you don’t care about, or don’t like (generally called "concessions"), on order to give the other side an incentive to sign the trade agreement.

It’s an odd idea, I know, that every single line in a trade agreement might not be there for the exclusive benefit of the great United States of America, but it sometimes happens.

Anonymous Coward says:

It looks like one thing is not included, and that is a law making it illegal to connect to ones own vpn on their home computer to bypass region restrictions when abroad.

I like to take road trips all over the anericas, but the region locks on music services are annoying.

I get around that by connecting my phone or laptop to my private VPN I have on my home network and connect to, say, IHeart, so I can listen on my phone while I am driving, and it will look like I am listening from my home computer, instead of a mobile data connection in Canada or Mexico.

Connecting to my home network’s VPN server for that purpose does currently break any laws in Canada, Mexico, or the United States.

There is no law, at present, in any of those countries that makes it illegal to connect to my home VPN to bypass geo blocking to access these services when I am in those countries. Unless,you are in Iran, Pakistan, or Qatar, connecting to your VPN back home does break the law.

In short, connecting to your home VPN from abroad to access us only sites does not break any US laws. While you might possibly break local law in some countries, you cannot be prosecuted in the United States for that, as that does not yet break any law in the United States.

I would imagine some future agreement will make it illegal, but it appears the us Mexico free trade agreement will not require such a law, for now.

NeghVar (profile) says:

intended purpose of limited time

When a talented individual creates a great work, They get to commercially exploit that great work for a limited time. When that time expires and they still seek commercial exploitation, use that superior talent to create another great work and commercially exploit the new great work. That was to original intent. To motivate the talented people to continue showing us their talent by continually creating new works.

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