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Modernizing Copyright in Trade Deals

Creators and copyright owners have strong advocates as the United States approaches future trade agreements. Senate Judiciary Subcommittee on Intellectual Property Chairman Thom Tillis, R-N.C., and ranking member Chris Coons, D-Del., have weighed in on the need to take a modernized approach to an outdated Digital Millennium Copyright Act provision.

Sens. Tillis and Coons asked the U.S. Trade Representative that provisions reflecting 17 U.S. Code Section 512 not be included in future trade agreements, as they were in the U.S.-Mexico-Canada Agreement. The Senate IP Subcommittee is working on updating the DMCA. Section 512 sits near the center of the target for DMCA modernization. Conservatives for Property Rights said, when the USMCA was struck: “We hope future trade deals will go further to advance accountability for online copyright infringement.”

Section 512 protects Internet platforms from liability if they remove copyright-infringing content, even if the same or similar infringing content reappears. That seemed fine in 1998, when the DMCA was enacted. But today, piracy is more sophisticated and creators routinely find their works repeatedly available through infringing means, after they had notified and the platform had taken it down.

The DMCA notice-and-takedown provision, circa 1998, isn’t suited for meaningfully defeating copyright infringement in 2020. The law no longer strikes an appropriate balance. Internet platforms have too little incentive to be vigilant against the all-too-common repeat appearance of infringing content on their platforms. And copyright owners can’t police the entire Internet themselves and continually do notice-and-takedown.

CPR shares Sens. Tillis’s and Coons’ desire for better terms. CPR has called for changes aligned with those the senators seek. In our report on industrial competitiveness, we recommended modernization:

“Strengthen and update the ‘notice and takedown’ process of the Digital Millennium Copyright Act to better protect creative works online. Require Internet platforms to keep infringing content from reappearing on their services once notified of its existence and encourage them to work more collaboratively with creative rights holders to reduce massive online IP infringement.”

CPR’s comments to the Federal Trade Commission focused on problems arising from DMCA Section 512:

“Persistent and growing Internet theft can in part be attributed to a lack of accountability by dominant online platforms. Section 512 of the Digital Millennium Copyright Act of 1998 (DMCA) granted these companies immunity from liability for infringing content carried on their services if they comply with limited obligations to remove the infringing content once notified by rights owners. But the Internet of today looks little like the Internet of 1998, which was dominated by companies like AOL, Prodigy, and GeoCities. Today, creators must play an endless game of “whack-a-mole” by sending millions of notices to online service providers only to see their works reappear virtually immediately. The scale of the problem is staggering. Google alone processed close to 900 million notices from copyright owners in 2017.

“This state of affairs chills creativity and innovation. For example, some platforms pay inordinately low royalty rates for music available on their streaming services — in large part because songwriters are competing with illegal free copies of their work. And innovators suffer, too. In a 2015 letter to shareholders, Netflix CEO Reed Hastings said '[p]iracy continues to be one of our biggest competitors. [Its growth] ... is sobering.'

“What’s more, piracy puts consumers at risk. Online safety groups such as the Digital Citizens Alliance have found that nearly 1/3 of piracy sites infect their users with malware, thereby putting consumers at risk for identity theft, fraud, ransomware, and more.”

Trade deals shouldn’t lock into place obsolete copyright policy that the Senate is looking to improve domestically.

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