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USMCA Set To Export U.S. Copyright Law to North American Neighbors

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USMCA Set To Export U.S. Copyright Law to North American Neighbors

Postby MrFredPFL » Wed Jan 29, 2020 3:50 pm

Story :

ISP Safe Harbors

The USMCA requires its member states to establish a framework for addressing both online infringement and limitations of liability for ISPs that will be familiar to U.S. practitioners. Specifically, it obligates each member state to “ensure that legal remedies are available for right holders to address [online] copyright infringement and establish or maintain appropriate safe harbors [for] Internet Service Providers,” by providing for incentives to ISPs that cooperate with efforts to deter infringement and by providing safe harbors to ISPs for user transmission, storage or linking to infringing content which the ISP does not “control, initiate or direct.”

Further in keeping with U.S. law, the USMCA requires implementation of procedures for takedown notices and counter-notices and ISPs will be liable if they do not take down unauthorized content “upon obtaining actual knowledge of the copyright infringement or becoming aware of facts or circumstances from which the infringement is apparent, such as through receiving a notice of alleged infringement from the right holder or a person authorized to act on its behalf,” similar to the willful blindness/red flag standards developed in United States.

In additional parallels to U.S. law, ISPs will not be able to avail themselves of the safe harbors if they do not implement policies for terminating users who repeatedly infringe, interfere with measures to protect content or vicariously infringe, however safe harbors are not conditioned on ISPs monitoring or affirmatively investigating potential infringement.

Life of Copyright Term

The USMCA also exports longer copyright terms from the United States by requiring its member states to implement a minimum term for the life of a copyright of “not less than the life of the author and 70 years after the author’s death.” Where the term is based on a period “other than the life of a natural person,” the USMCA requires that the life of the copyright shall be “not less than 75 years from the end of the calendar year of the first authorized publication of the work, performance, or phonogram, or failing such authorized publication within 25 years from the creation of the work… not less than 70 years from the end of the calendar year of the creation of the work, performance, or phonogram.”

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