By: Natalia Vera Matiz
WHAT ABOUT USMCA?
Last October, México, United States, announced that achieved a new agreement to replace the actual commercial trade named NAFTA; this agreement is called USMCA (United States, México, Canada agreement) and must to be approved by the legislature of each country.
USMCA, bring with it, a special norm regarding the protection of copyright in Internet, that is in extremely similar to the system of notice and takedown of the DMCA of United States.
In its article 20.89 “Legal Remedies and Safe Harbors”, stablishes that the legal framework in order to make same harbors must include legal incentives for Internet Service Providers to cooperate with copyright owners to deter unauthorized storage of copyrighted materials, or to take other action to deter this type of storage or transmission of copyrighted material.
In its numeral three, says that in order to Internet Service Providers are not liability of infringement copyright, the law must establishes a system, where there is a requirement to them, to expeditiously remove or disable access to the material on their system, once they have knowledge of this, including through a notice from the owner of the rights.
Then, there is a process to notify the owner of the material, and is understood that the Internet Service Provider act in good faith.
The relevance here, is that USMCA extend the system of the DMCA, with the same flaws of it; it means, that we are in front of a system of notice and takedown that affects the free speech, because the owner of the material has to affront the takedown of his material, without a judicial process, and the IPS does not analyses if for example the material is used in exercise of the fair use. Or if there is a legal exception.
This is not a minor concern, because if the system is already settled down in an international agreement, we are not far to see it in a global treaty, and in obligations imposed by United States in the free trade agreements signed one by one with each country of the different regions.
It’s time to ask us, if there is not choice, or if there is an alternative to protect the rights derivate of the copyright, without there being an extreme imbalance with other rights like free speech.