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RIAA expresses disappointment over safe harbour provision in the all new NAFTA

By | Published on Thursday 4 October 2018

NAFTA

The American record industry has criticised a new trade deal between the US, Canada and Mexico for including the pesky copyright safe harbour but without any of the reforms that the music business has been calling for, particularly in relation to user-upload platforms.

The governments of Canada and the US reached an agreement last weekend on a revamp of what was known as the North American Free Trade Agreement, and what will now be called the United-States-Mexico-Canada Agreement, or USMCA for short. Mexico and America confirmed that they had reached an understanding on the big revamp back in August, but it took an extra month to get Canada on board for the trade deal reforms.

It was US President Donnie Trump who instigated a review of the 25 year old North American Free Trade Agreement, he having once dubbed it as “the single worst trade deal ever approved” by the US. USMCA, he said on Monday, is a “brand new deal” and, by the way, “the most important trade deal we’ve ever made, by far”.

Which is probably an exaggeration, USMCA is basically NAFTA v2. Though even ardent Trump critics will likely concede that there are some significant changes, especially in relation to cars, milk and employee rights.

Then there are the sections on intellectual property. Both the tech sector and the entertainment business hoped that the NAFTA revamp would be an opportunity to talk about the copyright safe harbour that has proven so controversial in music industry circles in recent years. The safe harbour, of course, is the thing that says that internet companies cannot be held liable when their customers use their networks and servers to distribute copyright protected material without licence.

The tech sector hoped that NAFTA v2 would be a way of ensuring that the kind of safe harbour protections they currently enjoy under US law would be made available in Canada and Mexico as well. The entertainment business, meanwhile, hoped that any mention of safe harbour in the new trade treaty would deal with its concerns over how safe harbours have been exploited by user-upload platforms like YouTube. And in doing so, possibly pave the way for safe harbour reforms Stateside in line with those that are being drafted in Europe.

It’s fair to say that the tech sector got more of what it wanted. Responding to that, the President of the Recording Industry Association Of America, Mitch Glazier, published a statement earlier this week arguing that the proposed new treaty does not provide “adequate modern copyright protections for American creators”.

“We understand the US Trade Representative and his team must navigate a complex trade landscape”, Glazier started. “And we appreciate the diligent work of Ambassador [Robert] Lighthizer and his staff over the past several months. Unfortunately, the agreement’s proposed text does not advance adequate modern copyright protections for American creators. Instead, the proposal enshrines regulatory 20 year old ‘safe harbour’ provisions that do not comport with today’s digital reality”.

Repeating the music industry’s objection to current safe harbour rules, Glazier went on: “These provisions enrich platforms that abuse outdated liability protections at the expense of American creators and the US music community, which provides real jobs and is one of our nation’s biggest cultural assets. Modern trade treaties should advance the policy priority of encouraging more accountability on public platforms, not less”.

The RIAA man then concluded: “We are hopeful that the administration and Congress will redouble their efforts to further this priority going forward, which is front and centre in the national dialogue today. We look forward to working with both USTR and Congress to ensure that this text serves not as a precedent but a launching pad for future negotiations toward a framework that works for everyone in the digital marketplace, including creators”.

There are, however, reasons to be cheerful for the music community in relation to the copyright section of USMCA, although mainly for songwriters and music publishers. Under the agreement, Canada will bring its copyright term for songs in line with the US (and Europe) by extending it from the current ‘life of the creator plus 50 years’ to ‘life of the creators plus 70 years’. This part of the deal doesn’t affect Mexico which already has the world’s longest copyright term for things like songs, life plus 100 years.

This will please the music publishing sector, which had also been calling on Canada to increase the copyright term for so called literary and musical works. Those calls had strengthened in recent years after Canada did decide to increase the copyright term for sound recordings – from 50 to 70 years after release – bringing that in line with Europe.

Although now agreed by governments in the US, Canada and Mexico, the all new trade agreement still needs to be ratified by legislatures in all three countries, and US Congress for one isn’t likely to get to that until next year.



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