What Trump’s nominee said last year during a hearing could send shivers down the spines of broadcasters and other copyright holders. One of the best examples of how Kavanaugh might act on the Supreme Court is a case that never actually resulted in an opinion. It was also a case that held enormous significance to the television industry. That’s Fox Television Stations v. FilmOn.TV Networks, which was heard at the D.C. Circuit Court of Appeals in March 2017.
After the hearing, Neal Katyal, the attorney for the broadcasters not to mention the former Acting Solicitor General, called the two-hour event the “longest oral argument of my life.” This might explain why the broadcasters then chose to settle the case rather than risk a disastrous ruling.
Whatever you may think of President Donald Trump’s overall international trade agenda, there hasn’t been a lot winning in it so far for the U.S.-based copyright industries.
The movie, music, games and publishing industries, among others, have spent decades since the passage of the WIPO Copyright Treaty working closely with both Republican and Democratic administrations, to use the leverage of U.S. trade negotiations to advance the cause of strengthening copyright protections around the world, by inserting protections into multilateral trade agreements. But the fruits of that labor are in danger of going unharvested as Trump pulls the U.S. back from global trade deals.
In one of his first acts as president, Trump pulled the U.S. out of the Trans-Pacific Parternship (TPP), the 12-nation pact originally intended to enshrine U.S. economic influence in Asia and throughout the Pacific Basin. To the dismay of many technology companies and consumer rights groups, the treaty’s intellectual property chapter, drafted largely by U.S. negotiators working in close consultation with U.S. copyright interests (and the pharmaceutical industry), contained a number of provisions requiring other countries to adopt strong U.S.-backed copyright protections, including anti-circumvention rules for technical protection measures, enhanced enforcement procedures and remedies, including for secondary liability, and extended terms for copyright.
Although some TPP countries have already adopted similar provisions as a result of bilateral trade agreements with the U.S., several have not. It’s hard to read the U.S. withdrawal as anything but a blow to efforts to extend enhanced protection and enforcement standards globally.
The Trump administration says it wants to negotiate individual bilateral agreements with the other countries, but if the TPP 11 sign onto a multilateral deal that expressly rejects the U.S.-backed copyright provisions those countries likely will be less anxious to agree to them in bilateral negotiations.
Many trade experts, in fact, believe that pulling out of TPP has reduced U.S. leverage overall in trade negotiations.
History shows that “having another deal already in place or almost in place certainly strengthens your hand” in trade negotiations, the director of the Mexico Institute at the Wilson Center, Duncan Wood, told Foreign Policy magazine last week.
One area where that reduced leverage may already be telling is the negotiations demanded by Trump to revise the North American Free Trade Agreement (NAFTA) with Canada and Mexico, both TPP countries.
As the fifth of a scheduled seven rounds of talks on NAFTA got underway in Mexico last week, Canada and Mexico reportedly are pushing back firmly against efforts by the U.S. to include U.S.-backed language from TPP into the North American deal.
NAFTA, which was ratified in 1993, was negotiated before the widespread commercial adoption of the internet, and is largely silent on issues related to cross-border data flows and copyright liability on digital platforms.
Although the talks are being held behind closed doors, one area where the U.S. is believed to be trying to insert language adopted from TPP is in the intellectual property chapter.
Last week, a group of trade associations representing major technology companies, including the Internet Association, the Consumer Technology Association, and the Information Technology Industry Council, wrote to U.S. Trade Representative Robert Lightizer to express their concern that the talks had moved away from what they called the “balanced” approach to copyright the administration had previously agreed to, in favor of rules that would benefit copyright owners over users.
“Our understanding, based on numerous conversations with people knowledgeable of each party’s undisclosed positions, is that there has been no agreement to include provisions promoting copyright user rights or the principle of balance in NAFTA,” they wrote. “Absence of such provisions would make the final agreement unacceptable.”
Whatever the case, the NAFTA negotiations are in danger of breaking down altogether over other U.S. demands, which the Trump administration has said could lead to the U.S. pulling out of the 23-year old treaty.
Should NAFTA go down, any hope U.S. copyright interests have for getting stronger protections included in trade deals with Canada and Mexico would probably go with it.
UPDATE (Nov. 20th): The office of the U.S. Trade Representative has now released a list of U.S. objectives for the latest round of NAFTA talks, including extensive intellectual property provisions. Here’s the relevant portions of the list:
Promote adequate and effective protection of intellectual property rights, including through the following:
Obtain commitments to ratify or accede to international treaties reflecting best practices in intellectual property protection and enforcement.
Provide a framework for effective cooperation between Parties on matters related to the adequate and effective protection and enforcement of intellectual property rights.
Promote transparency and efficiency in the procedures and systems that establish protection of intellectual property rights, including making more relevant information available online.
Seek provisions governing intellectual property rights that reflect a standard of protection similar to that found in U.S. law, including, but not limited to protections related to trademarks, patents, copyright and related rights (including, as appropriate, exceptions and limitations), undisclosed test or other data, and trade secrets.
Provide strong protection and enforcement for new and emerging technologies and new methods of transmitting and distributing products embodying intellectual property, including in a manner that facilitates legitimate digital trade, including, but not limited to, technological protection measures.
Ensure standards of protection and enforcement that keep pace with technological developments, and in particular ensure that rights holders have the legal and technological means to control the use of their works through the Internet and other global communication media, and to prevent the unauthorized use of their works…
Prevent the undermining of market access for U.S. products through the improper use of a country’s system for protecting or recognizing geographical indications, including such systems that fail to ensure transparency and procedural fairness, or adequately protecting generic terms for common use.
Provide the means for adequate and effective enforcement of intellectual property rights, including by requiring accessible, expeditious, and effective civil, administrative, and criminal enforcement mechanisms. Such mechanisms include, but are not limited to, strong protections against counterfeit and pirated goods.