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Congressional committee says copyright safe harbour shouldn’t be included in new US trade agreement with Canada and Mexico

By | Published on Monday 23 September 2019

US Congress

The judiciary committee of the US House Of Representatives has written to the US Trade Representative expressing concerns about the inclusion of the pesky copyright safe harbour in a new free trade agreement between America, Canada and Mexico. The Congressional committee also reveals that the US Copyright Office’s long-running review of said copyright safe harbour should finally result in a report later this year.

The American record industry has already had a good moan about the decision to include the safe harbour from US copyright law in that new Donald Trump instigated free trade agreement. Its inclusion would force Canadian and Mexican lawmakers to ensure that their copyright systems are in line with US law when it comes to protecting internet companies from liability for the copyright infringement of their customers.

Obviously, the music industry has been very critical of that safe harbour over the years, and in particular its employment by user-upload platforms like YouTube. The music community argues that companies that basically build streaming services out of the content their users upload – even though some of that content is unlicensed – should not enjoy the same kind of safe harbour protection as server hosting companies and internet service providers.

The new European Copyright Directive seeks to increase the liabilities of safe harbour dwelling user-upload platforms, though quite how that will work remains to be seen. Meanwhile, the US Copyright Office began a review of the American safe harbour all the way back in late 2015. We are yet to get a report from that review, but it seems publication could now be imminent. It may well recommend reforms of US copyright law.

With all that in mind, the music industry reckons the existing US safe harbour – found in the 1998 Digital Millennium Copyright Act – shouldn’t be cut and pasted directly into the new US/Canada/Mexico free trade agreement. And now the judiciary committee has expressed the same viewpoint in a letter to US Trade Representative Robert E Lighthizer.

The committee writes in its new letter that the US copyright safe harbour has been “the subject of much attention in recent years – some have called on Congress to update these very provisions, enacted in the days of a dial-up internet”.

The Congress members go on: “The US Copyright Office is expected to produce a report on [the safe harbour] around the end of this year, the result of a multi-year process that started in 2015. Moreover, the European Union has recently issued a copyright directive that includes reforms to its analogous safe harbour for online platforms, which may have an impact on the US domestic policy debate”.

The committee says that it is not taking any position on whether or not the US copyright safe harbour should indeed be reformed, but adds “we find it problematic for the US to exploit language mirroring this provision while such serious policy discussions are ongoing. For that reason, we do not believe a provision requiring parties to adopt a [DMCA]-style safe harbour system … should continue to be included in future trade agreements”.

It remains to be seen how Lighthizer responds. The American music industry will be hoping he listens to the Congress members.