A One-Sided Copyright Approach in NAFTA Undermines Creators

Look around: Retro is in these days. Netflix’s “Stranger Things” and FX’s “The Americans” are 1980s throwbacks. Top artists like Leon Bridges, the Alabama Shakes and Nathaniel Rateliff and the Night Sweats are putting out music reminiscent of past eras. Last year’s Best Picture Oscar winner “The Shape of Water” was set in 1962, evocative of a classic love story from Hollywood’s Golden Age; interestingly also a remake of “E.T.” in many ways. An old-timer like me loves this trend for all things retro, but there is one part of this nostalgia that we need to discuss: an attempt to turn back the clocks to the entertainment industry’s antiquated business model.

The industry longs for the days when they could control everything, from dollar flows to what content people consumed. A time before the internet when they controlled who could be a creator, how they chose to make money and how consumers could consume their products. To get this done, they are seeking to skew the game in the North American Free Trade Agreement, rolling back balanced copyright provisions like fair use and online safe harbors.

In the digital age, creativity is not limited to canvas, vinyl or paperback. Technology and the internet have empowered a new generation of online creators, while also continuing to support the traditional entertainment and creative industries.

YouTube stars, Etsy artisans, self-published authors and other independent, American creators earned at least $6 billion in 2016 from posting their music, videos, art and other works online. From Etsy to eBay, Instagram to WordPress, all of these online platforms rely on copyright limitations and exceptions to operate. Because platforms can operate under balanced copyright, America’s 15 million independent, new creators can make money. These creators and innovators need NAFTA to promote copyright limitations and exceptions to support billions of dollars and millions of jobs in online creativity.

Internet and technological innovations have also ushered in unprecedented increases in “traditional” creative output as entertainment becomes increasingly accessible to the public and available in ever-greater varieties. Today we get our movies, TV, books, news, art and music from consumer products like smartphones, tablets, e-readers and DVRs. What most people don’t realize is that those examples of technology rely on fair use. That’s why when you count up the 18 million U.S. workers who are employed by fair use industries, the total number includes tech manufacturers, software engineers and startups — in addition to the publishing and entertainment industries that are making money off the internet-enabled boom in creativity.

Importantly, increased access has resulted in increased revenues. Entertainment executives falsely claim that the internet has “ruined” their business and use NAFTA as a means to clamor for stronger copyright enforcement than U.S. law already provides, but the United States has actually seen a decrease in infringement levels and increase in entertainment industry revenues due to an increase in availability of online streaming services like Spotify, Pandora, Netflix, YouTube and Hulu.

When countries don’t have fair use, it also holds back the development of artificial intelligence and machine learning technology from developing inside those countries. That can include everything from translation software to voice assistants like Amazon’s Alexa to music generation. Many of the algorithms behind AI and machine learning require “copying” from existing sources and then scanning them in order to “learn” from the data. In the United States, that’s protected by fair use, but the legal safeguards become murkier in other countries without explicit copyright limitations and exceptions.

This balanced copyright framework is nothing new — it’s existed for two centuries, enshrined within the U.S. Constitution, subsequent U.S. laws and judicial precedents. Innovation-oriented copyright provisions like fair use and safe harbors are also clearly preserved in Congress’ grant of trade promotion authority to the president.

Retro may be in vogue, but America should not be consuming this latest throwback to a 1980s-style business model and economy that no longer exists in our current digital lives. NAFTA should reflect and promote both sides of America’s copyright framework — including fair use and online safe harbor provisions — in order to protect millions of American creative jobs and continue to support billions of dollars in U.S. gross domestic product.


Joshua Lamel is executive director of the Re: Create Coalition.

Morning Consult welcomes op-ed submissions on policy, politics and business strategy in our coverage areas. Updated submission guidelines can be found here.

Morning Consult