Donald Trump's New Trade Deal With Mexico Leads to Confusion About Copyright Term

The NAFTA revision, with congressional approval, might mean a copyright term of life of the author plus 75 years. Or maybe not.
Photofest
Mickey Mouse

Is Disney about to get an early birthday gift for Mickey Mouse? An ambiguous press release from the Office of the U.S. Trade Representative on Monday sent copyright lawyers scrambling for answers.

On Monday, the Trump administration announced that it had reached a preliminary agreement with Mexico to revise the North American Free Trade Agreement. According to government officials, the deal will lead to freer markets, fairer trade and robust economic growth. 

Here was the item that caused terrific confusion: A fact sheet originally put out by the Office of the U.S. Trade Representative indicates that the copyright term would "extend" to 75 years.

Currently, the copyright term for most works is life of the author plus 70 years. If what is meant by the announced extension is life of the author plus 75 years, it would represent five more years of copyright protection — a modest amount, but certainly a noteworthy and potentially controversial one as a slew of works were set to begin pouring into the public domain this coming January for the first time in decades. The fact sheet also indicates that the copyright term will be extended for works "like song performances," so it also possible that this designated term would pertain to certain classes of authorship. 

But then there are works of copyright authorship with a term of 95 years. And works from anonymous authors. 

So what's going on?

One official at the USTR explained to The Hollywood Reporter that the fact sheet referred to "publication-based" works — meaning the ones with a 95-year term. Meaning there wouldn't be any extension. Then again, others who had a briefing with the USTR heard something different. There has even been talk this was all a typo.

Fake news? Maybe, maybe not. Time will tell.

Congress would need to ratify the treaty before it went into effect. Changing the term might also require an amendment to copyright law.

As for Disney, whose lobbying push in the mid-1990s was widely credited with extending the term from 50 years, it enjoys a 95-year term so the change — if any — might not impact the company. The Sony Bono Copyright Term Extension Act survived a Supreme Court challenge and staved off the freeing of Mickey Mouse (at least the Steamboat Willie version) until 2024.

According to the fact sheet, the new IP chapter of what President Donald Trump says will be now called the United States-Mexico Trade Agreement will also establish a notice-and-takedown system for internet service providers.

It is unclear whether that would mean new rules or merely harmonize Mexico into the Digital Millennium Copyright Act, which establishes safe harbors for ISPs under certain conditions including expeditiously removing infringing material.