The Administration has announced its intent to commence negotiations to modernize the North American Free Trade Agreement (NAFTA). The Office of the U.S. Trade Representative has requested public comment on what should be addressed in the negotiations, including “relevant trade-related intellectual property issues that should be addressed in the negotiations.” On Friday, June 9, the Library Copyright Alliance (LCA, whose members are the American Library Association, Association of Research Libraries, and Association of College and Research Libraries) filed comments making the following points:
1. Exceptions and Limitations. LCA strongly supports inclusion in NAFTA of a provision based on Trans Pacific Partnership Agreement (TPP) Article 18.66, “Balance in Copyright and Related Rights Systems.” This language would insure that nothing in NAFTA would in any direct or indirect way undermine the fair use right. This language would also lead to improvements in Mexican copyright law, which would allow libraries in Mexico to engage in more cross-border activities that benefit U.S. users. Finally, inclusion of this language would place a uniquely American stamp on an international IP agreement.
2. Exhaustion. NAFTA should include a strong exhaustion provision (including international exhaustion) based on U.S. law. This would ensure that manufacturers would not have the ability to game the trade system to their benefit and to the detriment of U.S. worker, consumers, and libraries.
3. Intermediary Safe Harbors. Because Mexico has not yet adopted safe harbors, NAFTA should include an obligation to enact liability limitations for Internet intermediaries. Internet intermediary safe harbors in Mexican copyright law would encourage cross border activities that benefit U.S. libraries and their users.
4. Copyright Term. NAFTA should require no more than a term of life plus 50 years. Including in NAFTA a life plus 70 term of protection, as was included in TPP Article 18.63, would limit the flexibility of Congress to shorten the term of protection in the future.
5. Other Matters. The TPP IP chapter contains other positive, balancing language that LCA believes should be included in NAFTA. This language addresses the appropriate objectives of IP rights, proportionately of remedies, and prevention of abusive enforcement practices.