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.