Copyright Confusion and the U.S.-Mexican Trade Deal

Earlier this week President Trump announced a new preliminary trade deal between the United States and Mexico that would revise portions of the North American Free Trade Agreement (NAFTA), which was signed in 1994.

The announcement was met with a large amount of confusion. At first, it was over the possible exclusion of Canada, who was also a signatory to NAFTA. Though Canada appears to be on track to reach its own agreement, there is still a great deal of uncertainty as to what this deal will look like and who will be involved in it.

This confusion ramped up when the United States Trade Representative (USTR) published a fact sheet that covered the intellectual property portions of the agreement. Buried in the sheet contained a startling bombshell, what appeared to be an extension of the copyright term in the United States.

In the original fact sheet, the bullet point read:

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. 

Original USTR Fact Sheet

To many, this indicated that the United States would be extending its copyright term from the current Life + 70 to Life + 75. This caused a firestorm of controversy as, for the first time in decades, new works will enter into the public domain at the end of the year.

However, after much confusion and several reporters seeking clarification about the statement, the USTR updated the fact sheet to read: 

Set a minimum standard of 75 years of copyright term for sound recordings and other works calculated by date of publication, and life plus 70 years for works calculated based on the life of the author.

Current USTR Fact Sheet

This version clearly paints the deal as setting a floor that is below or equal to the current copyright terms in the United States (Life + 70 for works by individuals and 95 years for works of corporate authorship).

However, this might extend copyright for some works in Mexico. Currently, books, video recordings and broadcasts of corporate authorship receive a copyright of 50 years from publication. This would raise that to 75, bringing it on par with Mexico’s term for sound recordings.

Those terms only apply to works of corporate authorship, for works of individual authorship, Mexico has the longest copyright term on the planet, life + 100 years. There is no copyright extension there.

In the end, the trade agreement won’t likely mean any drastic changes to United States copyright law (any such changes would have to be approved by Congress regardless). Though the fact sheet does indicate that Mexico will be required to set up a notice-and-takedown system similar to the one in the United States, there doesn’t appear to be any drastic copyright term changes for either country.

Still, the case shows just how complicated and divisive these issues are. Whether the USTR didn’t understand the trade deal or simply explained it poorly, one line in a USTR fact sheet generated a massive response, including sharp criticism from groups like Public Knowledge. 

Many of these groups are on edge, fearing a repeat of 1998 where a last-minute copyright extension prevented 1923 works from lapsing into the public domain. However, such an extension is unlikely in 2018 for a variety of reasons.

But, while the trade agreement doesn’t appear to the U.S. copyright term, the agreement will still be one to watch, especially as negotiations continue with Canada.