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Big tech urges US government to push back on safe harbour reform abroad

By | Published on Monday 11 November 2019


Trade organisations for America’s tech sector have had a good old moan about the new European Copyright Directive, and other similar copyright reforms elsewhere in the world, in new submissions to the US Trade Representative.

While the copyright industries have been busy calling on the US government to urge other countries to crackdown on an assortment of piracy sites – via the USTR’s annual notorious markets report – groups representing the likes of Google, Facebook and Twitter want the opposite. The tech lobby outfits would much prefer it if the US government put pressure on foreign governments to ensure that new copyright laws don’t put too many new obligations onto their members.

Submissions by both the Computer & Communications Industry Association and the Internet Association as part of the USTR’s review of barriers to US exports are particularly critical of the new European Copyright Directive. That, of course, increases the liabilities of user-upload platforms which host copyright infringing material as a result of the much talked about safe harbour reform, lobbied for by the music industry and contained in article seventeen of the final directive.

“The recent EU Copyright Directive”, the CCIA reckons, “poses an immediate threat to internet services and the obligations set out in the final text depart significantly from global norms. Laws made pursuant to the directive will deter internet service exports into the EU market due to significant costs of compliance”.

In its submission, the Internet Association argues that EU safe harbour reform puts European copyright law out of kilter with US copyright law.

“The EU’s Copyright Directive directly conflicts with US law”, it argues, “and requires a broad range of US consumer and enterprise firms to install filtering technologies, pay European organisations for activities that are entirely lawful under the US copyright framework, and face direct liability for third party content”.

Beyond the US, the tech giant repping groups also criticise copyright rules or reforms in other countries like Australia, Brazil, India and Ukraine. The copyright safe harbour in Australia has always been narrower than the US and Europe, and plans to expand it were put on hold pending the outcome of the then in development European directive.

The Internet Association adds: “If the US does not stand up for the US copyright framework abroad, then US innovators and exporters will suffer, and other countries will increasingly misuse copyright to limit market entry”.

The European directive is, of course, still be being implemented across the EU. It remains to be seen quite what impact it has on user-upload platforms. Throughout the lobbying process the music industry accused the tech sector of hyperbole and, sometimes, outright lying when it argued that the new liabilities would force platforms offline.

Meanwhile, the music industry is hoping to export the EU safe harbour reforms to other countries, not least the US. We always knew that efforts to reform the American safe harbour would result in an even fiercer push back from big tech, and these new submissions confirm that is still definitely the case.