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More safe harbour sparring as tech and entertainment sectors make NAFTA submissions

By | Published on Tuesday 19 September 2017


The US entertainment industry has urged the American government to not allow any of that safe harbour nonsense to find its way into any new version of the North American Free Trade Agreement. But political types are welcome to fill the space left by deleting the safe harbour clause with extra copyright protections.

As previously reported, your good mate Donnie Trump is having a good go at reforming NAFTA – the long-established free trade deal between the US, Canada and Mexico – and to that end interested parties have been invited to make submissions to his government on what issues should be prioritised as the three countries head to the negotiating table. Cue more safe harbour sparring between the tech and entertainment industries.

In its contribution to the NAFTA debate back in July, the Recording Industry Association Of America said that safe harbours should be on the agenda of any trade deal talks. But any subsequent discussions should focus on how shitty the safe harbour in America’s Digital Millennium Copyright Act has turned out to be, with it putting way to much onus on copyright owners to monitor the servers of super-rich tech firms for copyright infringing content, while also allowing fucking YouTube to exist. I mean, I’m paraphrasing slightly, but that’s basically what the major record companies were saying.

Well, what the RIAA actually said was that any NAFTA talks should seek to construct “a concise, high-level and high-standard service provider liability provision with respect to copyright infringement”, ensuring that “the safe harbours are only available to passive intermediaries without requisite knowledge of the infringement on their platforms, and inapplicable to services actively engaged in communicating to the public”.

Needless to say, the American tech sector does not concur. Last month various organisations representing the tech giants sent their own letter to US Trade Representative Robert Lighthizer insisting that the lovely DMCA safe harbour should be including in any NAFTA deal pretty much word for word, alongside other copyright limitations and exceptions that can currently be found in US law.

The letter said: “If we seek to create an international obligation in a modernised NAFTA that embodies only one part of the US copyright framework, but leave out other portions that the US technology sector depends on, we will cause serious harm to the most innovative and fastest growing segments of our economy, and put at risk vital jobs. This is why it is essential to ensure the balance at the heart of the US copyright system, including DMCA safe harbours and other copyright limitations and exceptions, is embraced by our key trading partners in North America”.

“Fuck off” counters CreativeFuture – a coalition of entertainment and media companies and associations – in its submission to US trade negotiators. You do know that everyone – including my Aunt Mavis – has concluded that the current American copyright safe harbour isn’t fit for purpose, and only fills the pockets of those Google shits with yet more money? Yeah, I’m paraphrasing again a little, but that’s the gist of a new letter from CreativeFuture CEO Ruth Vitale to the aforementioned Lighthizer.

“It’s irrefutable that the outdated, overly broad safe harbour proposals that currently exist in US law and prevent effective enforcement of rights under copyright have had a negative impact on American creative works themselves”, she writes, and by creative works she means “the movies, music, television shows, books, photographs, video games, and more that make our creative economy the envy of the world”.

So why oh why oh why oh why “should these provisions be in an updated NAFTA – undermining protections for American creatives overseas? Our communities rely on strong intellectual property protections – protections that must be strengthened and improved, not undermined by these outdated ‘safe harbours’. Please don’t export a system that does nothing but shelter the most powerful internet companies, rather than the start-ups that these tech trade associations often claim are the beneficiaries of safe harbour. In short, we should not try to export laws that are subject of serious dispute at home”.

Yeah, Granddad, get with the moment. Those safe harbours are so old school, so yesterday, they have no place in your all new, super swish, America First NAFTA deal.

As a fun aside, in its letter to Lighthizer, the tech sector claimed that it was speaking for the “new faces of the American content industry”. That’s because the trade bodies which signed the letter count both Amazon and Netflix as members, while the tech lobby was also keen to claim ownership of that self-releasing, mainly-streaming Chance The Rapper too.

“We are the new faces of the American content industry”, the tech lobby stated in their NAFTA correspondence, “winning Emmys and Oscars, providing distribution for streaming-only Grammy winners, while creating services that address the challenge of piracy by allowing consumers to legally access content globally”.

Not so, reckons Vitale in her latest Creative Future missive. “While I would take issue with anyone claiming to represent all ‘the new faces of the American content industry'”, she writes in her letter, “I can comfortably tell you that CreativeFuture represents many of the true faces. On behalf of our large community of creatives, we respectfully disagree with the views expressed by those tech trade associations”.

Given both sides in this debate are keen to include Chance The Rapper within their constituency, perhaps we could just all agree to let him decide on if and how safe harbours be integrated into the all new NAFTA. Mexico and Canada can then elect their own entrepreneurial rappers to represent their interests. Make NAFTA great again, I say.