“It’s great to see some progress made on trade negotiations to modernize NAFTA. But I hope policy makers keep in mind that intellectual property – like music – is one of our most important exports and must be protected.” — Conversations In Advocacy #33
On Aug. 27, the United States and Mexico announced, in principle, revised trade agreement conditions, sparking many reactions from stakeholders, including the music community. Concerned with provisions affecting copyright, the music community responded with an immediate response asking for the Safe Harbor provisions of the 1998 Digital Millennium Copyright Act to be revised, not extended — because the last 20 years of experience demonstrate the difference between neutral internet hosting and the way certain content platforms, like YouTube, abuse Safe Harbor protections. Let's dig a little deeper as negotiations on this work-in-progress continue.
The U.S. Trade Representative provided details of the terms agreed to in principle, including many specifically related to intellectual property. While seeking to provide a strong and firm foundation for the future, both for physical goods as well as online, a few deserve scrutiny as the terms proceed to be finalized. For example, the agreement to limit the liability of internet platforms that host or process third-party content. When in reality many platforms, like YouTube and Facebook, that are hands-on content publishers have abused similar such provisions as contained in the language of the 1998 DMCA Safe Harbor protections. Although other terms of the pact address this indirectly — ensuring the effectiveness of rights management technologies and notice-and-takedown provisions, IP owners have learned through real hardship that this is a loophole abusers love to exploit.
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To raise concern to this potential provision in the U.S.-Mexico deal, the Recording Academy joined with 19 other leading music organizations — including A2IM, ASCAP, AFM, BMI, NMPA, SESAC, RIAA and SoundExchange — to state the problem, and their concern, in clear terms.
"We are deeply concerned by the efforts of some to use the agreement to lock in flawed interpretations of pre-Internet 'safe harbors' perpetuating the theft of American music, creating safe havens preventing successful enforcement efforts within our trading partner nations, and severely harming our country's creators and their contributions to U.S. growth, jobs and surplus," read the statement in part.
This goal of finding the right balance so as not to "reward those seeking to profit unjustly from American creators" will ensure that future disruptions caused by internet innovations build a reliable marketplace for licensed goods as well as ideas. This is especially vital to indies trying to build livelihoods without backing because most creators begin as small businesses, trying to make ends meet and juggle countless real pressures. A stable distribution environment will also help larger firms represent the interests of their artists and clients, providing just the sort of "firm foundation" for innovation envisioned by the agreement in principle.
Known abuses of Safe Harbor provisions should inform the debate as future details to protect U.S. trade and innovation are negotiated. The American music industry was cut in half by the imperfect, early visions for internet innovation. Movies, television and live sports have also been severely hurt. The ingredients that are needed appear in the Administration's current plans, but how they are mixed together and put into practice should profit from lessons learned.
Contact Your Senators: Tell Them To Support Comprehensive Music Reform
"Conversations in Advocacy" is your weekend digital tip sheet on music advocacy and the policies that affect music makers and their craft. New installments post every Friday.
