USMCA Trade Deal Keeps DMCA-Style ‘Safe Harbor’ for ISPs

More than a quarter-century after the United States, Canada, and Mexico approved the NAFTA trade agreement, the North American countries have now signed off on a new trade deal.

The United States-Mexico-Canada Agreement (USMCA) will accommodate changes in trade that the three countries have witnessed over the years, especially online.

The road to this final deal wasn’t without obstacles. After agreeing on the text a year ago, new demands and proposed changes were tabled, some of which were included in the Protocol of Amendments that was published this week.

The amendments don’t cover copyright issues, but the previously agreed text certainly does. For example, USMCA will require all countries to have a copyright term that continues for at least 70 years after the creator’s death.

For Canada, this means that the country’s current copyright term has to be extended by 20 years. This won’t happen instantly, as the country negotiated a transition period to consult the public on how to best meet this requirement. However, an extension seems inevitable in the long term.

Another controversial subject that was widely debated by experts and stakeholders is the DMCA-style ‘safe harbor’ text. In the US, ISPs are shielded from copyright infringement liability under the safe harbor provisions of the DMCA, and the new deal would expand this security to Mexico and Canada.

This expansion was welcomed by many large technology companies including Internet providers and hosting platforms. However, many major entertainment industry companies and rightsholder groups were not pleased with the plans, as they have been calling for safe harbor restrictions for years.

US lawmakers also raised concerns. Just a few weeks ago the House Judiciary Committee urged the US Trade Representative not to include any safe harbor language in trade deals while the Copyright Office is reviewing the effectiveness of the DMCA law.

As the USMCA negotiations reached the final stage, House Speaker Nancy Pelosi weighed in as well, trying to have safe harbor text removed from the new trade deal.

Despite this pushback, there is no mention of changes to the safe harbor section in the final amendments. This means that they will remain in the USMCA, much to the delight of major Internet companies.

That said, copyright liability protection also comes with obligations. The agreement specifies that ISPs should have legal incentives to work with ISPs to ensure that copyright infringements are properly dealt with.

This framework shall include “legal incentives for Internet Service Providers to cooperate with copyright owners to deter the unauthorized storage and transmission of copyrighted materials or, in the alternative, to take other action to deter the unauthorized storage and transmission of copyrighted materials,” the agreement reads.

The USMCA specifically mentions that ISPs must take down pirated content and implement a repeat infringer policy if they want to apply for safe harbor protection. This is largely modeled after the DMCA law.

The safe harbors for copyright infringement and the takedown requirements don’t apply to Canada as long as it continues to rely on its current notice-and-notice scheme. However, the country will enjoy safe harbors for other objectionable content, modeled after section 230 of the US Communications Decency Act.

While the three North American countries have reached an agreement, the text still has to be ratified into local law and policy. So it may take some time before it has any effect.

Commenting on the outcome, Canadian copyright professor Micheal Geist notes that the safe harbor for objectionable content is a win for freedom of expression. The additional 20-year copyright term is a setback, although the negative effects can be limited by requiring rightsholders to register for such an extension.

On the other side, rightsholders are also pleased, at least with parts of the new agreement.

“The USMCA’s provisions to strengthen copyright protections and enforcement will benefit the U.S. motion picture and television industry and support American jobs,” MPA Chairman and CEO Charles Rivkin says.

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