Entertainment trade associations looking for opportunity to push a false narrative
By Joshua Lamel
The Hill
October 4, 2017

As the U.S. continues its re-negotiations of the North American Free Trade Agreement (NAFTA), entertainment trade associations are seizing yet another opportunity to push a false narrative around copyright in the U.S. and in foreign countries. They want to roll back the clock to an era before the internet, when they were free to commandeer the U.S. government to push unbalanced copyright rules abroad. Unfortunately for them, times have changed — and users, creators, and startups won’t stand for this.

Recently, the Recording Industry Association of America (RIAA), Creative Future and other entertainment industry trade associations wrote letters to U.S. Trade Representative Robert Lighthizer urging him and the government to push for lopsided language addressing copyright in the new NAFTA that — while good for their member companies — would cripple the creative economy and the internet economies

Specifically, Hollywood and friends want plenty of penalties and other provisions about enforcement of their rights in the agreement, but nothing at all about two essential limits on their monopoly copyright powers that literally have made the United States’ internet economy possible and the envy of the world.

Hollywood wants U.S. trade negotiators to believe that they alone represent “creators.” Yet they continue to neglect the interests of millions of creators who create using online platforms. From bloggers and podcasters to internet video stars and Etsy artisans, these “new creators” represent a significant component of the new creative economy.

The old economic model — where creators had to enter complex dealswith big studios and record labels to distribute their content — has been supplemented by a new world of tools for creativity and distribution.

Trade agreements must reflect this new world, not cripple it. In utilizing big and small online platforms like Shapeways, YouTube, SoundCloud, Instagram, and eBay, new creators all rely on balanced copyright provisions such as safe harbors and fair use — two key parts of U.S. law.

Without these protections under U.S. copyright law, user-generated content platforms would not have existed in the first place. And without corresponding protections abroad, creators will be hamstrung in leveraging platforms to reach new audiences and generate revenues in other countries.

Among the many false misconceptions that Hollywood is driving, they allege that a balanced copyright system protects the “narrow financial interest” of only the largest tech companies and has been “devastating” to the music industry.

There’s more than just anecdotal proof that it is in America’s interest to protect safe harbors both here and encourage their use abroad. Fair use industries equate to 16 percent of the U.S. annual economy. That translates to 18 million American workers employed in fair use-based jobs generating $5.6 trillion in annual revenue. Meanwhile, a recent studyfound that weakened safe harbors would result in the loss of 425,000 American jobs and $44 billion in U.S. GDP each year.

Safe harbors for online platforms are not “vast loopholes” as the entertainment trade associations would lead you to believe. They are critical components of U.S. copyright law — without them, the internet would cease to function as we know it.

Safe harbors have also been instrumental in spurring dramatic global growth for the music industry. For the fourth year in a row of consistent growth, U.S. wholesale revenues from music increased 9.3 percent in 2016, and online music streaming is driving revenues up almost 50 percent to $2.5 billion in the first half of 2017. Online streaming and other online platforms like Netflix, YouTube and Hulu actually help drive down infringement and theft — despite Hollywood claims.

In addition to providing for thousands of jobs and creativity today, safe harbors provide for the jobs, innovation and creativity of tomorrow by safeguarding tech startups. 81 percent of venture capitalists indicate that stronger safe harbor provisions are more important than strong economic conditions in deciding whether or not to invest.

If copyright provisions are to be included as part of trade negotiations, then measures like safe harbors and fair use are just as important as enforcement measures. The balanced American legal framework is what has enabled the internet economy to flourish and grow in the U.S. In order to empower American companies that use digital platforms to export their goods and services, we can’t afford to export a one-sided copyright regime, let alone make concessions on current aspects of U.S. law.

We stand for balance and fairness — the need to keep the scales balanced for both Hollywood and tech as well as the consumers and businesses in between. Legal measures like safe harbors and fair use enforce that balance to protect and promote American jobs, dollars, creativity and innovation. Here in the U.S., copyright enforcement and balancing provisions go hand-in-hand. It must be for the same for NAFTA. Don’t believe the latest Hollywood fiction.