Gary Shapiro is president and CEO of the Consumer Technology Association, which represents more than 2,200 consumer technology companies.
When U.S. president Bill Clinton, Canadian prime minister Brian Mulroney and Mexican president Carlos Salinas signed the North American free-trade agreement in 1993, it was hailed as a triumph of co-operation and communication – a model trade deal allowing an open exchange of goods, services and prosperity among Mexico, Canada and the United States.
But NAFTA 1.0 precipitated a major cornerstone for communication, co-operation and prosperity – the Internet, which supported international creativity, collaboration, innovation and commerce. As negotiators continue to meet in Washington, we must affirm our commitment to digital technology, the critical underpinning of the 21st-century economy. In an updated NAFTA, there are several key considerations negotiators should pursue.
Reducing barriers to digital trade
NAFTA makes no mention of digital trade, which – given that the United States exports $400-billion (U.S.) in technology services – seems like an oversight. Except it wasn't: The first digital purchase wasn't made until 1994, after NAFTA went into effect.
Creating a supportive environment for digital trade involves prohibiting customs duties on digital content and preventing forced data localization. This not only allows information to flow freely between borders, it enables Canadian and U.S. businesses to seize the opportunities from cloud computing, which relies on distributed computing resources.
It also means establishing predictable liability protections, so that online platforms can facilitate communications without being made to be a censor or artificial gatekeeper. We saw this play out in domestic U.S. politics with the 2012 SOPA/PIPA protests, when millions of people stood against over-broad anti-piracy laws that had the potential to shut down many popular sites.
Renegotiating NAFTA presents an opportunity to craft effective liability and safe-harbour measures on an international level that will hold users accountable and allow companies that host digital content to invest in new jobs instead of legal fees. We should also resist the trend, emerging in Europe, of requiring Internet companies to take worldwide actions that harm consumers and innovation based on requirements of a single country or jurisdiction.
Protecting the rights of IP owners, users and Internet intermediaries
Fair use, the first-sale doctrine and other copyright limitations and exceptions provide a framework that gives innovators the freedom to create new ideas and technologies, while also protecting their rights to their own creative content.
The United States, Canada and Mexico operate under differing copyright frameworks. For example, unlike the "fair dealing" doctrine in Canada and "fair use" in the United States, Mexico lacks any such doctrine to protect creative, personal, transformative or otherwise benign uses of protected content. The country also has unusually lengthy copyright-term provisions, keeping important cultural contributions of its citizens out of the public domain.
Moreover, Mexico lacks a "safe-harbour" provision that protects Internet companies that are willing to take action when properly notified of infringing content, and also lacks corresponding protections from non-IP liability. Similarly, a recent Canadian court decision requiring a U.S. company that was not charged with any copyright violation to delist specific search results on a worldwide basis is troubling. (It's being challenged in a U.S. court.) As evidenced by the differing rules on copyright between Canada and Mexico, technical barriers to trade can have a significant impact on new technologies.
If pursued, these policy initiatives will shape the economy of the future, unlocking new opportunities for innovation and creativity. If we don't address topics in a trade negotiation between three of the world's largest economies, we send a signal to the rest of world that we don't care.
Canada, Mexico and the United States already seem to be in agreement in some areas, including many of the principles that help to promote digital trade in the Trans-Pacific Partnership (TPP) discussions. These discussions should lay the groundwork for agreements to come, including NAFTA.
Let's work together – as neighbours – to craft a modernized trade deal that promotes the technologies and jobs of the future and ensures prosperity across North America.