Don’t Write Copyright Law in Secret

The United States is the world’s chief exporter of copyright law. With recent news that President Trump is expected to sign the US Mexico-Canada (USMCA) trade agreement next week, we’re one step closer to Canada being forced to align with the US copyright duration to life of the author plus 70 years, keeping important works from being able to enter the public domain for another 20 years.

The USMCA requires participating countries to have a copyright term of at least 70 years. In practice, this measure will affect only Canada: in the United States, copyright lasts 70 years already, and in Mexico it’s even longer (100 years). Only Canada has stuck with the 50-year minimum required by the Berne Convention.

It’s a common story: again and again, trade agreements bring longer copyright terms to participating countries under the banner of standardization, often with the United States. But that “standardization” only takes place in one direction, toward more restrictive copyright laws. The failed Trans-Pacific Partnership Agreement (TPP) would have lengthened copyright terms for several participating countries. It also would have brought US copyright’s protection for digital locks to participating countries.

The USMCA is just the latest example: when copyright terms are negotiated in private, multinational agreements, it tends to favor the interests of large media companies. Countries should decide their own copyright laws by inclusive, democratic processes, not through secret negotiations.

Those copyright law expansions bring real threats to human rights in the countries where the United States exports them. In 2011, Colombian graduate student Diego Gomez shared another student’s Master’s thesis with colleagues over the Internet, sparking a six-year legal battle that could have put him in prison for years.

While Diego’s story has become a rallying cry for advocacy for open access to research, it’s important for another reason too. It shows the dangerous consequences of copyright-expanding trade agreements. The law Diego was tried under had a sentencing requirement that lawmakers passed in order to comply with a trade agreement with the U.S.

Trade agreements that expand copyright almost never carry requirements that participating nations honor limitations on copyright like fair use or fair dealing, leaving many countries with strong protection for large rights-holders and weak protection for their citizens’ rights.

Copyright should not be a global monolith. Differences between countries’ copyright laws are a feature, not a bug. In implementing copyright law, lawmakers should carefully balance the rights of copyright holders with the rights of the public to use and build upon copyrighted works. Lawmakers can’t make that balance when their trade negotiators have already given the public’s rights away.