May 1, 2018 at 5:00 am ET
Negotiations over the North American Free Trade Agreement are coming to a close, and the end result could have a major impact on the future of innovation. If NAFTA negotiators want to ensure the success and prosperity of our digital economy, they should look to the U.S. legal framework, where a combination of a predictable copyright regime and clear intermediary liability rules has allowed the United States to become the global leader in both content creation and technological innovation. A NAFTA renegotiation that results in a weakened legal system will only harm content creators and innovative startups, hindering their growth and the potential reach of their online content.
If Congress and the courts have established a framework that has led to unprecedented growth of content creation and a booming technology industry, why would NAFTA negotiators weaken these rules through international trade agreements? Unfortunately, legacy copyright gatekeepers, such as the Motion Picture Association of America and the Recording Industry Association of America, are using their outsized influence in Washington to undermine internet safe harbors and rewrite copyright law to protect their bottom line. To do this, they are unfairly trying to pit content creators against the tech community. That argument may resonate inside the Beltway, but outside D.C., small tech companies and independent content creators work hand-in-hand to promote innovation and creativity.
Startups and artists frequently work together to launch new platforms that help creators collaborate, share, distribute, promote, and monetize their content. And that makes sense because startups and artists know they must constantly hustle to grow their respective customer bases and attract investments and a following. To do this effectively, both groups need access to foreign markets so that they can scale. But they also need a legal framework that lets innovators pursue the same business models abroad that they do at home. And while Canada and Mexico remain the largest markets for U.S. startup exports, the internet has exponentially expanded the growth potential of entrepreneurs and artists alike. This trend will only continue if we continue to have a clear legal framework guiding how content can be shared.
A key piece of this legal framework is the Digital Millennium Copyright Act, which provides predictable limitations on liability while empowering rights holders to quickly remove infringing content. Additionally, copyright principles like fair use are critical for startups and content creators to offer new, creative ideas built on the foundation of existing works — just as Disney built its reputation on reinterpreting the creative ideas of other classic storytellers. NAFTA, which includes no such protections, should be updated to expand the U.S. system of copyright limitations and exceptions, ensuring that startups and artists can export their products and services to foreign markets and expand on their domestic success.
Additionally, any NAFTA renegotiation should benefit artists and startups by including provisions that prohibit governments from forcing online services to act as unofficial gatekeepers for content on the internet. The intermediary liability framework found in U.S. law is the foundation for pioneering platforms used by billions of people for collaboration, communication, creation, distribution, and promotion. Thanks to modern technology, even the smallest artist can reach millions of people online. But this is only possible because U.S. law protects companies that host or serve as a platform for huge volumes of transactions, communications and other activity by third parties. As Mexico and Canada look to grow their technology sector and promote their local artists, both should look to the U.S. system for the keys to success.
Over the past 25 years, the internet has grown from an obscure academic tool to a ubiquitous technology, that plays a central role in almost every aspect of American life. Along the way, it’s made it possible for everyone to be a creator, providing a level of access to tools for making, distributing, and monetizing creative works that was unimaginable when NAFTA was first drafted. To ensure future innovation and creativity, we cannot allow NAFTA renegotiation to be a tool for big-media gatekeepers, who seek to undermine the legal framework upon which startups and artists rely in search of even greater profits.
Mike Masnick is the editor of Techdirt and founder of the Copia Institute, a digital think tank, while Rachel Wolbers is policy director of Engine Advocacy, the voice of startups in government. Together, Copia and Engine Advocacy host everyonecreates.org, a website devoted to telling the stories of creators who depend on legal protections afforded under NAFTA.
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