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NAFTA Renegotiation Triggers New ‘Safe Harbor’ Copyright Battle

WASHINGTON — Much of the attention around the renegotiation of the North American Free Trade Agreement has focused on President Donald Trump’s threats to withdraw if no substantive progress is made.

But there is yet another copyright battle emerging between showbiz and tech, this time over just what kind of provisions will be put in any deals relating to the extent of liability that internet companies face when they post or host infringing content.

In a letter sent on Monday to U.S. Trade Representative Robert Lighthizer, 37 content groups are urging him to reject pleas by tech associations and other groups to make sure that any revised agreement includes strong “safe harbor” provisions. In the U.S., internet companies are shielded from liability if they promptly remove pirated content at the request of the copyright holder, but showbiz groups have long argued that the system is like a game of “whack-a-mole” in trying to prevent movies, TV shows, and music from being posted online.

“If these anti-IP voices succeed, they will turn long-standing trade policy, with creativity and innovation at its core, on its head by transforming our trade agreements into blueprints for how to evade liability for IP theft,” the content groups wrote in the letter. “These voices call for new chapters and vast new immunities for their online services. At the same time, they insist that outdated and imperfect trade provisions that perpetuate the misuse of ‘safe harbors’ from liability for online copyright theft should be mandated in trade agreements, even where they fail to reflect key safeguards for rights holders found in U.S. law.”

Among those signing the letter were the MPAA, the Recording Industry Association of America, CreativeFuture, the DGA, SAG-AFTRA, and the Independent Film & Television Alliance.

A number of music groups — including ASCAP, BMI, the RIAA, and the Recording Academy — also sent a letter, arguing that “a few dominant platforms have pushed for provisions in NAFTA that fail to adequately protect our industry, disincentivize taking reasonable measures to protect intellectual property, and provide immunity from liability without sufficient safeguards for copyright holders.”

The Internet Association, which represents major internet companies like Google, Facebook, and Amazon, says “safe harbor” protections modeled on that in the U.S. are needed in a revised agreement. “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 in its wish list for the NAFTA revision.

The group Re:Create, which includes the Center for Democracy and Technology, the American Library Association, Public Knowledge, and Freedom Works, said “safe harbor” and “fair use” provisions are needed to strike a balance in copyright enforcement.

“There is no balance in exporting heavy-handed enforcement measures while ignoring the other side of the equation,” the coalition’s executive director, Joshua Lamel, said in a recent op-ed. “Our economy relies on a balanced and innovation-oriented approach to copyright.”

Of course, all of these points could be moot if the U.S. bows out of the pact.

A spokesperson for Lighthizer did not immediately return a request for comment.

(Pictured: U.S. Trade Representative Robert Lighthizer)

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