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Hollywood wants copyright reforms included in Kenyan trade talks, but no safe harbours thank you very much

By | Published on Wednesday 22 April 2020


The American film industry has told the US Trade Representative that recently launched trade talks with Kenya are a great opportunity to address issues with the African nation’s copyright laws and – more than that – “develop an effective copyright and enforcement template for the African continent”.

Though, while going through that process, American negotiators and Kenyan lawmakers should be very careful not to import any shoddy copyright rules from other countries like, oh, I don’t know, the United States Of America.

In a letter to the USTR earlier this month, the Motion Picture Association said that the US government should use the trade talks to pressure Kenya to fully implement the global copyright treaties it previously signed up to but never quite got around to properly embracing. Copyright terms – ie the length of time the copyright in any one work lasts for – should also be increased to bring them in line with Europe and North America.

But whatever Kenyan lawmakers do, they shouldn’t cut and paste into their laws the copyright safe harbour found in Section 512 of America’s Digital Millennium Copyright Act. Because we all know what happens when you start introducing any of that safe harbour nonsense.

“With regard to online enforcement”, the film industry group wrote, “a US-Kenya agreement should include disciplines that can effectively address online piracy. This means moving away from a rote recitation of Section 512 of the US Digital Millennium Copyright Act”.

“Rather”, they went on, “we recommend moving to high-level language that reflects the fundamental principles of the DMCA. Such an approach would be fully consistent with US law and create some policy space for Kenya to be innovative in its approach to online piracy”.

It’s not the first time the US entertainment industry has cautioned against the exporting of American copyright law when it comes to things like safe harbour, fair use and anti-piracy measures, which are all areas where Hollywood’s domestic copyright regime often offers less protection that systems employed elsewhere in the world, especially in Europe.

Of course, American music and movie companies would like their home copyright laws changed too in all those domains, though – in a slightly weird way – they often have more chance of influencing policy abroad than they do in Washington.