WASHINGTON — As President Donald Trump touted a revised trade agreement between the U.S., Mexico, and Canada as a historic achievement, the music industry says it falls short of providing “modern copyright protections.”
Mitch Glazier, president of the Recording Industry Association of America, zeroed in on the inclusion of a safe harbor provision in the proposed text of the new pact, meant to be an updated version of the North American Free Trade Agreement.
The safe harbor shields internet providers and tech companies from liability for piracy as long as they take infringing content down promptly upon notification of the copyright holder. Record labels, studios, and other content groups have long criticized the safe harbor provision of U.S. copyright law as putting too much of the burden on content owners to police piracy online.
“Unfortunately, the agreement’s proposed text does not advance adequate modern copyright protections for American creators,” Glazier said in a statement on Monday. “Instead, the proposal enshrines regulatory 20-year-old ‘safe harbor’ provisions that do not comport with today’s digital reality. These provisions enrich platforms that abuse outdated liability protections at the expense of American creators and the U.S. music community, which provides real jobs and is one of our nation’s biggest cultural assets.”
According to a summary of the agreement released on Monday, the new agreement will “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 States law.”
The RIAA and other music industry groups had lobbied against such a safe harbor provision in the new pact, even though it is similar to the one found in the Digital Millennium Copyright Act of 1998.
“Modern trade treaties should advance the policy priority of encouraging more accountability on public platforms, not less,” Glazier said. “We are hopeful that the Administration and Congress will redouble their efforts to further this priority going forward, which is front and center in the national dialogue today.”
Congress still has to approve the new agreement.
The agreement also requires a copyright term of the life of the author plus 70 years, which is in line with other current U.S. copyright terms — such as those made “for hire” and owned by corporate entities — would have a minimum term of 75 years after first publication. Current U.S. law is 95 years.
Last year, a number of content industry groups argued that the safe harbor provisions should be “limited to passive neutral intermediaries and not platforms that are optimizing or promoting content.” The fear among the groups is that by including it in such a massive trade pact, it will be all the more difficult to make changes to the safe harbor provision in the future.
The Internet Association, which represents major companies like Google, Facebook, and Amazon, had urged that a NAFTA revision include a safe harbor provision.
“Mexico has no copyright safe harbor regime, which means that U.S. service providers can be held liable under Mexican law even if they have a system in place to remove content,” the Internet Association said last year.
The IA said on Monday that it was still reviewing the text of the agreement.
The trade agreement also includes prohibitions on such things as recording of movies in theaters, as well as ex officio authority for law enforcement to stop suspected counterfeit or pirated goods at borders.
Update: David Israelite, the president and CEO of the National Music Publishers Association, said that the trade agreement does include gains for songwriters, in that it extends copyright terms in Canada.
“While the agreement did not adequately address safe harbor concerns, music creators should celebrate the significant improvement in the length of their copyrights,” he said, adding that the pact will bring Canadian copyright terms in line with the U.S. and other countries.
“This decision signals a renewed valuing of creators that we hope indicates the possibility of even more progress on protecting their work,” he said.