If fully and properly implemented and vigorously enforced, certain of the provisions in the USMCA will enable creators, publishers, and distributors of U.S. music, movies, TV programs, videogames, books, journals, databases, and other creative works to reach more listeners, viewers, readers, gamers and other consumers in Mexico and Canada, and will allow this sector to enhance its already substantial contribution to U.S. economic growth, foreign sales and exports, and overall U.S. global competitiveness.
In sum, agreements that: (i) incorporate evolving global norms and best practices for copyright protection and enforcement; (ii) include other provisions aimed at dismantling barriers to U.S. participation in digital marketplaces around the world; (iii) are faithfully implemented by our trading partners; and (iv) have obligations that are vigorously enforced—play a critical role in U.S. exports and foreign sales, and will continue to do so in the future.
For the most part, disciplines in these areas meet or exceed the standards of prior FTAs, and the strong enforcement obligations should be of particular value in pursuing the massive online infringers whose activities are so inimical to the development of legitimate digital trade in copyrighted materials.
Not only is an explicit secondary liability standard missing in the text, the USMCA actually includes a number of new provisions that could undercut USTR’s efforts to ensure U.S. trading partners provide adequate “legal incentives” through secondary liability principles.3 Furthermore, Article 20.89 includes several new elements that do not appear to be consistent with U.S. law, and omits certain important conditions for safe harbor eligibility that are part of U.S. law.4 Making matters worse, the USMCA effectively exempts Canada’s clearly inadequate notice-and-notice system from even the weak requirements of the core safe harbor rules.
This 3For example, unlike in prior FTAs, the text includes an option to “take other action to deter the unauthorized storage and transmission of copyrighted materials.” While the intent of this language is not clear, one interpretation is that it provides broad flexibility in additional measures Parties may choose to take to address online piracy and frame limitations on liability, undercutting the “legal incentives” obligation.