Trump's NAFTA Deal Leaves Copyright Term Extension Ambiguous

CBR

Trump’s NAFTA Revision Could Further Extend Copyright Term (Or Not)

By Eirik Gumeny

Published Aug 27, 2018

The Trump administration has outlined plans for a new NAFTA deal that seemingly extends the copyright term... but nobody knows which one.

HONG KONG - SEPTEMBER 1: (EDITORIAL USE ONLY) In this handout photo provided by Disney, Mickey and Minnie Mouse are seen in front of the Sleeping Beauty Castle at the new Disneyland Park on September 1, 2005 in Hong Kong. The new theme park and vacation resort will officially open September 12. (Photo by Mark Ashman/Disney via Getty Images)

An ambiguous press release from the United States government relating to the North American Free Trade Agreement is causing unexpected confusion for authors and copyright lawyers, as one specific document seems to state that the copyright term may be extended to 75 years. The wording, however, is unclear.

Per The Hollywood Reporter, a fact sheet released today by the Office of the U.S. Trade Representative indicated that the “copyright term” -- the length of time the creator of a particular work is entitled to certain protective rights -- would “extend” to 75 years. Currently, the copyright term is set for the life of the author, plus 70 years.

The confusion, however, comes from the lack of specificity. In addition to the above, the copyright term for publication-based, or “work-for-hire,” works, wherein work is created for an employer, is currently set at 95 years from first publication. Anonymous works, as well, have different terms. The USTR document did not specify which works would be affected.

Further adding to the confusion, the fact sheet also stated that the copyright term would be extended for works “like song performances,” which suggests that only certain classes of authorship could be affected, though, again, those classes are not specified.

Many outlets had understandably assumed the extension referred to 70-year-term, single-author works. However, when The Hollywood Reporter reached out for clarification, an official at the USTR explained that the fact sheet referred to “publication-based” works, those that already have 95-year terms -- which means there isn’t an extension at all. This would, in fact, be a reduction of 20 years.

The USTR, meanwhile, has reportedly been briefing other outlets differently, with some even reporting that they were told the fact sheet contains “a typo.”

In any event, Congress would need to ratify the Trump administration’s proposed treaty before any part of it went into effect, and, even then, an amendment to existing copyright law might also be necessary to actually change the copyright terms.