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The New NAFTA: Copyright Changes Under the United States-Mexico-Canada Agreement

Mexico, the United States and Canada have agreed on the text of a new trade agreement, known as the United States-Mexico-Canada Agreement (“USMCA”), to replace NAFTA. The USMCA remains subject to final review, but the full text of the agreement is now available online.

Chapter 20 of the USMCA addresses intellectual property. The chapter is substantially longer and more detailed than the predecessor intellectual property chapter in NAFTA, a copy of which can be found here.

The main changes with respect to copyright relate to the term of protection and the requirement to penalize the circumvention of technical protection measures.

The USMCA increases the term of protection for copyright, where copyright is based on the life of a natural person, from at least 50 years after the person’s death to at least 70 years after death. For copyright calculated other than on the life of a natural person, the USMCA sets the term as not less than 75 years from the end of the calendar year of the first authorized publication or, where there was no authorized publication within 25 years of creation, at least 70 years from the end of the calendar year of the creation of the work. (Art. 20.H.7)

The USMCA adds the requirement to penalize the circumvention of Technical Protection Measures (TPM) and Rights Management Information (RMI). Civil liability is required for the knowing circumvention of TPMs and for the sale, importation, distribution, rental or other provision of anything promoted, advertised or marketed for the purpose of circumventing TPMs. Criminal penalties are required when this is done for “commercial advantage or private financial gain.” (Art. 20.H.11) A parallel provision requires similar penalties for knowing removal or alteration of RMI, knowing distribution of altered RMI, and the knowing distribution of works where RMI has been removed or altered (Art. 20.H.12)