Even as the seeping Music Modernization Act sits on his desk waiting for his signature, President Trump is failing creators and the music industry with his new Mexico and Canada trade deal, according to the RIAA.
While President Trump is taking a victory lap after announcing reconfigured trade agreements with Canada and Mexico, the recording industry is taking exception to the proposed deal’s copyright protections.
"enrich(es) platforms that abuse outdated liability protections"
In a statement released after the deal was announced, the RIAA’s Mitch Glazier said: “We understand the U.S. Trade Representative and his team must navigate a complex trade landscape, and we appreciate the diligent work of Ambassador Lighthizer and his staff over the past several months.
Unfortunately, the agreement’s proposed text does not advance adequate modern copyright protections for American creators. Instead, the proposal enshrines regulatory twenty-year-old ‘safe harbor’ provisions that do not comport with today’s digital reality. These provisions enrich platforms that abuse outdated liability protections at the expense of American creators and the U.S. music community, which provides real jobs and is one of our nation’s biggest cultural assets.
“Modern trade treaties should advance the policy priority of encouraging more accountability on public platforms, not less. We are hopeful that the Administration and Congress will redouble their efforts to further this priority going forward, which is front and center in the national dialogue today. We look forward to working with both USTR and Congress to ensure that this text serves not as a precedent but a launching pad for future negotiations toward a framework that works for everyone in the digital marketplace, including creators.”
The United States-Mexico-Canada Agreement enshrines the Safe Harbor provisions of the Digital Millennium Copyright Act, a piece of legislation from 1998 that sought to protect Internet service companies from copyright infringement its users might engage in on their platforms. In essence, Google cannot be found liable for copyright infringement if its search results point to copyrighted material made available for download by a third party.
In recent years, the safe harbor provisions of the DCMA have been under attack by copyright holders primarily through the legal system. In landmark cases such as BMG v. Cox, content companies have slowly chipped away at the protections provided by the Safe Harbor provisions of the DCMA, creating a legal morass that is very much in flux.
In BMG v. Cox, the internet service provider unsuccessfully argued for safe harbor protections after failing to stop users from downloading copyrighted material even after the copyright holder issued warnings that violations were taking place.
Cox settled the case in August, just days before it was due to come to trial after the court ruled in February that they were not eligible for protection under Safe Harbor. Cox’s settlement came just weeks after a group of labels that includes Warner, Sony, and Universal Music, filed a suit against them over similar allegations.
The issue is further complicated by different copyright regimes in America’s trade partners. Unlike the U.S., Mexico has no safe harbor provisions and companies may be liable for copyright infringement that occurs on their platform. Canada, meanwhile, does provide similar Safe Harbor protections under the Copyright Modernization Act, which passed in 2012.
As with any international treaty, Congress must ratify the new trade agreements before they will take effect.