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U.S.-Mexico Trade Agreement Draws Concern from Music Industry, Ire from Public Interest Groups

U.S. President Donald Trump gestures as
Pablo Martinez Monsivais/AP/REX/Shutterstock

WASHINGTON — President Trump’s preliminary trade agreement with Mexico is drawing criticism from music industry groups as not doing enough to protect content, and the opposite reaction from public interest groups who see it as a giveaway to showbiz.

Major music industry associations, including the Recording Industry Association of America and the Recording Academy, say that they are “deeply concerned” about the agreement, pointing to its inclusion of a “safe harbor” provision that is a part of U.S. copyright law.

Meanwhile, public interest group Public Knowledge says that the pact is a “gift to the big entertainment interests,” as it apparently includes an extension of copyright terms to 75 years, from the current 70. The details of the agreement have not yet been released, so it is still unclear what the full implications of it will be.

The exact text of the agreement has not yet been released. Congress will need to approve any final trade pact between the U.S. and Mexico, something that in all likelihood would not happen until next year. There’s also the possibility that Canada will join the agreement, making it a revision of the North American Free Trade Agreement. Trump said “we will see” if Canada joins the talks.

According to a U.S. Trade Representative summary of the preliminary agreement, it includes “a notice-and-takedown system for copyright safe harbors for Internet service providers that provides protection for [intellectual property] and predictability for legitimate technology enterprises who do not directly benefit from the infringement, consistent with United States law.”

The “safe harbor” is part of the U.S. Digital Millennium Copyright Act of 1998, and it shields internet providers and tech companies from liability for piracy as long as they take infringing content down upon notification of the copyright holder.

A number of content industry groups, however,  last year argued that the safe harbor should be “limited to passive neutral intermediaries and not platforms that are optimizing or promoting content.” Even though it is part of U.S. law, content groups have long sought changes to it, arguing that it should put more of the onus on internet platforms to root out piracy.

In a statement on Monday, the RIAA, the Recording Academy and other groups said that they were “deeply concerned by the efforts of some to use the agreement to lock in flawed interpretations of pre-Internet ‘safe harbors’ perpetuating the theft of American music, creating safe havens preventing successful enforcement efforts within our trading partner nations, and severely harming our country’s creators and their contributions to U.S. growth, jobs and surplus.”

The Internet Association, which represents major companies like Google, Facebook and Amazon, had urged that a NAFTA revision include a safe harbor.

“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 trade agreement also would limit “the civil liability of Internet platforms for third-party content,” similar to Section 230 of the Communications Decency Act of 1996.

Jordan Haas, the Internet Association’s director of trade and international policy, said that it was “encouraging to hear that USTR advocated for intermediary liability protections, like those reflected in U.S. law under Section 230, and included them in the agreement. These protections enable internet platforms to police illegal content online and have made America’s digital economy the envy of the world.”

The preliminary agreement includes some provisions that are pleasing to content creators, including one that extends the minimum copyright term to 75 years “for works like song performances.” The current U.S. term is life of the author plus 70 years.

An MPAA spokesman said on Monday that the trade association “welcomes today’s announcement and looks forward to reviewing the full text of the agreement.  MPAA is optimistic that a modernized North American trade deal will advance America’s creative economy through robust IP protections and market access.”

The copyright extension, however, was met with condemnation from Public Knowledge, a Washington-based public interest group.

Gus Rossi, its global policy director, said that the copyright term extension “is a staggeringly brazen attempt by the entertainment industries to launder unpopular policies through international agreements.

“Not only would a copyright term extension never survive domestic debate, but it also violates the instructions Congress gave in trade promotion authority, which directed the U.S. Trade Representative to negotiate intellectual property provisions consistent with existing law,” he said. “This is a slap in the face to the public interest, to consumers, and to Congress.