The United States Trade Representative has released a
summary of some of the highlights concerning IP and the new “NAFTA” between the
United States, Canada and Mexico. The USMC agreement (United States Marine Corps or What We Say -- I'm making a joke.) summary states, in part:
UNITED STATES–MEXICO–CANADA TRADE FACT SHEET Modernizing
NAFTA into a 21st Century Trade Agreement
The United States, Mexico, and Canada have reached an
agreement to modernize the 24-year-old NAFTA into a 21st century, high-standard
agreement. The new United States-Mexico-Canada Agreement (USMCA) will
support mutually beneficial trade leading to freer markets, fairer trade, and
robust economic growth in North America.
The United States, Mexico, and Canada have reached an
agreement on a modernized, high-standard Intellectual Property (IP) chapter
that provides strong and effective protection and enforcement of IP rights
critical to driving innovation, creating economic growth, and supporting
Key Highlights: Protections for United States Innovators
The new IP Chapter will:
- Include 10 years of data protection for biologic
drugs and a robust scope of products eligible for protection.
- Require full national treatment for copyright and
related rights so United States creators are not deprived of the same
protections that domestic creators receive in a foreign market.
- Continue to provide strong patent protection for
innovators by enshrining patentability standards and patent office best
practices to ensure that United States innovators, including small- and
medium-sized businesses, are able to protect their inventions with
- Include strong protection for pharmaceutical and
- Require a minimum copyright term of life of the
author plus 70 years, and for those works with a copyright term that is
not based on the life of a person, a minimum of 75 years after first
- Require strong standards against the circumvention of
technological protection measures that often protect works such as digital
music, movies, and books.
- Establish appropriate copyright safe harbors to
provide protection for IP and predictability for legitimate enterprises
that do not directly benefit from the infringement, consistent with United
- Provide important procedural safeguards for
recognition of new geographical indications (GIs), including strong
standards for protection against issuances of GIs that would prevent
United States producers from using common names, as well as establish a
mechanism for consultation between the Parties on future GIs pursuant to
- Enhance provisions for protecting trademarks,
including well-known marks, to help companies that have invested effort
and resources into establishing goodwill for their brands.
Key Achievement: Most Comprehensive Enforcement Provisions
of Any Trade Agreement
For the first time, a trade agreement will require all
of the following:
- Ex officio authority for law enforcement
officials to stop suspected counterfeit or pirated goods at every phase of
entering, exiting, and transiting through the territory of any Party.
- Express recognition that IP enforcement procedures
must be available for the digital environment for trademark and copyright
or related rights infringement.
- Meaningful criminal procedures and penalties for
unauthorized camcording of movies, which is a significant source of
pirated movies online.
- Civil and criminal penalties for satellite and cable
- Broad protection against trade secret theft,
including against state-owned enterprises.
Key Achievement: Strongest Standards of Protection for
Trade Secrets of Any Prior FTA
In particular, the Chapter has the most robust protection for
trade secrets of any prior United States trade agreement. It includes all
of the following protections against misappropriation of trade secrets,
including by state-owned enterprises: civil procedures and remedies, criminal
procedures and penalties, prohibitions against impeding licensing of trade
secrets, judicial procedures to prevent disclosure of trade secrets during the
litigation process, and penalties for government officials for the unauthorized
disclosure of trade secrets.
The new Digital Trade chapter contains the strongest
disciplines on digital trade of any international agreement, providing a firm
foundation for the expansion of trade and investment in the innovative products
and services where the United States has a competitive advantage.
Key Highlights of the Digital Trade Chapter
The new Digital Trade chapter will:
- Prohibit customs duties and other discriminatory
measures from being applied to digital products distributed electronically
(e-books, videos, music, software, games, etc.).
- Ensure that data can be transferred cross-border, and
that limits on where data can be stored and processed are minimized,
thereby enhancing and protecting the global digital ecosystem.
- Ensure that suppliers are not restricted in their use
of electronic authentication or electronic signatures, thereby
facilitating digital transactions.
- Guarantee that enforceable consumer protections,
including for privacy and unsolicited communications, apply to the digital
- Limit governments’ ability to require disclosure of
proprietary computer source code and algorithms, to better protect the
competitiveness of digital suppliers.
- Promote collaboration in tackling cybersecurity
challenges while seeking to promote industry best practices to keep
networks and services secure.
- Promote open access to government-generated public
data, to enhance innovative use in commercial applications and services.
- Limit the civil liability of Internet platforms for
third-party content that such platforms host or process, outside of the
realm of intellectual property enforcement, thereby enhancing the economic
viability of these engines of growth that depend on user interaction and