What’s NAFTA got to do with it?

Many may not realize that trade treaties can impact copyright law, by not including exceptions that are important for libraries services, research, user access, and fair use. So, when the U.S. Trade Representative (USTR) asked for comments before negotiations to re-write the North American Free Trade Agreement (NAFTA) get underway, the Library Copyright Alliance (LCA) took the opportunity to provide our perspective in a letter. Our message hasn’t changed—Congress put exceptions in the copyright law for a reason, so trade negotiators, don’t mess around with our copyright law, even when interested parties urge you do so.

An abandoned building with "The Trading Post" painted on it.

“The Trading Post” by Clinton Steeds is licensed under CC BY 2.0

During Trans-Pacific Partnership (TPP) negotiations in 2012, LCA was happy to see that balanced copyright was recognized as desirable element of the treaty by including library exceptions in treaty language including fair use:

“Each Party shall endeavor to achieve an appropriate balance in its copyright and related rights system, inter alia by means of limitations or exceptions that are  consistent with Article 18.65 (Limitations and Exceptions), including those for the  digital environment, giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired, or otherwise print disabled.” (TPP Article 18.66).

The Library Copyright Alliance recommended to NAFTA negotiators that this same language be included in the treaty. In addition, LCA asked that first sale or “exhaustion” be addressed. This is the U.S. exception that allows librarians to lend books, and more broadly allows consumers with lawfully acquired copies of a work the right to distribute that work without authorization. Without exhaustion, there would be no eBay, no Salvation Army collection centers and no second-hand book stores. If included in the treaty, we would advance first sale policy into the international realm which would be interesting because many countries do not have first sale in their respective copyright laws. Of course, that would be a baby step.

LCA also submitted comments on intermediary safe harbors that ensure libraries will not be held liable for the actions of library users. Additionally, LCA addressed copyright term, the public domain, and DRM (digital rights management).

This is just the beginning of a trade negotiation process that will be hidden from the public—unless parts of the treaty are leaked (which often occurs). Only private sector players can negotiate, so it is extremely important to have library concerns that represent the public interest on record. Once the treaty is approved, it will still have to pass in the Senate by two thirds vote. The Senate’s option will be “take it or leave it” because modifications of the treaty cannot be allowed without going back to the drawing board to seek country approval for any modifications. Because the current administration has made trade a priority, we may see a trade treaty negotiated more quickly than usual. LCA will follow its developments.

About Carrie Russell

Carrie Russell is the Director of the Program on Public Access to Information in the Office for Information Technology Policy (OITP). Her portfolio includes copyright, international copyright, accessibility, e-books and other public policy issues. She has a MLIS from the University of Wisconsin-Milwaukee and a MA in media arts from the University of Arizona. She can be reached via e-mail at crussell@alawash.org.

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