Canada, the United States and Mexico have reached agreement on a new trade agreement to replace NAFTA.  Now called the United States-Mexico-Canada Agreement (the USMCA),  the Agreement includes both an Intellectual Property Chapter and a Digital Trade Chapter.  

The digital provisions include gains and losses that will require changes to Canadian law, but also preserves the status quo on issues of importance to Canada:

  • Copyright term has been extended by 20 years to the life of the author plus 70 years
  • Canada’s notice and notice system for ISP liability has been preserved
  • Term of protection for data for biologic pharmaceuticals is extended to ten years
  • The agreement includes explicit anti-circumvention rules that will limit Canada’s ability to reform our existing problematic regime.
  • Canada will be required to criminalize breach of trade secrets
  • Net Neutrality guarantees do not feature in the agreement
  • Data localization rules are restricted, meaning Canada will have difficulty requiring internet companies to store data about Canadians in Canada. Such restrictions are permitted for legitimate public policy purposes provided the restrictions are not greater than required to meet the objective
  • Canada will be obliged to craft rules exempting Internet platforms from liability for the legal wrongs of their users