Additional Problematic Terms

The renegotiated NAFTA intellectual property text includes a plethora of copyright rules that require careful analysis to determine their implications for freedom of expression and access to information on the internet in the three countries. Many elements of these copyright rules were derived from the controversial provisions in the TPP that digital rights activists vigorously opposed. What is immediately obvious is that by requiring a copyright term of “life of the author plus 70 years” the new copyright text would dramatically lengthen Canada’s copyright term by 20 years. The WTO TRIPS agreement requires protection for 50 years after the death of the author. Including such terms in NAFTA also would lock the United States in to our unnecessarily long copyright term. The result would be needlessly keeping classic literary and artistic works of cultural importance under the monopoly control of Hollywood and the recording and publishing giants.

New “digital trade” rules could undermine governments’ efforts to protect their citizens’ privacy, personal data and security. For example, one renegotiated NAFTA rule would require governments to allow the transfer of consumers’ data – including financial or medical data subject to privacy protections in the countries’ laws – outside their borders. Policies to protect privacy by restricting where or how data may move or be stored would be subject to challenge as “illegal trade barriers” under the text. In such challenges, the defending country must bear the burden of proving that no less-trade-restrictive means of accomplishing the desired policy goal are possible. Very few public interest regulations have survived this “prove a negative” exercise when challenged under trade pact terms. The revised NAFTA text also includes a provision prohibiting governments from requiring big mass-market software companies to disclose their source code or algorithms. This could increase the monopoly power of software giants like Microsoft and thwart efforts to investigate and regulate anti-competitive and discriminatory behavior. While a version of this provision was included in the initial TPP text and elsewhere, it included only source code. The revised NAFTA’s inclusion of algorithms creates even more dangers. There has been growing concern about algorithm bias and discrimination, such as worrying cases of U.S. sentencing software resulting in bias against African Americans and of Google displaying more ads for executive jobs to men than to women. This provision could restrict regulators’ ability to uncover such algorithm bias, depending on how the exceptions are interpreted. Finally, weak and unenforceable standards included in the text fail to safeguard net neutrality, the absence of which poses a threat to an open internet.