MPAA Calls for No Safe Harbour Provision in US/Kenya Trade Agreement

The US and Keyna are in talks over a trade agreement. The MPAA took the opportunity to demand that no safe harbour provision be part of the agreement.

When it comes to online innovation, a vast majority of American based accomplishments wouldn’t have happened without safe harbour laws being part of US copyright law. Safe harbour provisions is essentially a law that says that platforms are not liable for the infringing activities of their users so long as they respond to copyright notices issued by rights holders.

This law is fundamental to the success of various online platforms. This ranges from Google to Facebook to Amazon to pretty much everything in between. In fact, if you want a great example of what happens when safe harbour provisions are eliminated, look no further than the FOSTA/SESTA debate. That piece of now passed legislation effectively said that safe harbour provisions do not apply when there is evidence of so-called “sex trafficking” going on in the web services in question. After the passage, many called it a dark day in Internet history. They went so far as to call it a new era of online censorship.

By 2019, studies were released into the impacts of FOSTA/SESTA and the free speech situation looks grim. Entire websites were shut down over fears of overwhelming liability. During the time after FOSTA/SESTA’s passage, sex crimes spiked. Many in the sex trade, of course, know why this would be. Part of the blame is that many online tools such as networks that share details of who are safe clients and who have a known violent history have been taken offline. As a result, many in the sex trade had to make do without. The consequences are, of course, severe as the tools to protect themselves now suddenly no longer exist. All that innovation and progress in the last several years in making the sex trade safer had been effectively wiped out because of this law.

Ultimately, the safe harbour provisions protects a lot of things. This includes free speech, innovation, and all the spinoff benefits that would ensue. Without the safe harbour provisions, online innovation would have to largely take place outside of American borders.

So, it probably comes as no surprise that when trade talks come up, various organizations want to have their say on matters. Recently, the Motion Picture Association of America (MPAA), a longstanding opponent of innovation, is quick to make their demands on it. From Complete Music Update:

Though, while going through that process, American negotiators and Kenyan lawmakers should be very careful not to import any shoddy copyright rules from other countries like, oh, I don’t know, the United States Of America.

In a letter to the USTR earlier this month, the Motion Picture Association said that the US government should use the trade talks to pressure Kenya to fully implement the global copyright treaties it previously signed up to but never quite got around to properly embracing. Copyright terms – ie the length of time the copyright in any one work lasts for – should also be increased to bring them in line with Europe and North America.

But whatever Kenyan lawmakers do, they shouldn’t cut and paste into their laws the copyright safe harbour found in Section 512 of America’s Digital Millennium Copyright Act. Because we all know what happens when you start introducing any of that safe harbour nonsense.

“With regard to online enforcement”, the film industry group wrote, “a US-Kenya agreement should include disciplines that can effectively address online piracy. This means moving away from a rote recitation of Section 512 of the US Digital Millennium Copyright Act”.

“Rather”, they went on, “we recommend moving to high-level language that reflects the fundamental principles of the DMCA. Such an approach would be fully consistent with US law and create some policy space for Kenya to be innovative in its approach to online piracy”.

Shoehorning in anti-innovation provisions in trade agreements have been pretty par for the course for these organizations for decades now. In a more recent example, these corporate organizations called on lawmakers to, among other things, extend copyright terms, thereby locking out culture for an additional 20 years. There is, of course, plenty of evidence that points out that such a move is detrimental to the countries economy. There is no reason or case to be made that such a move is necessary. Unfortunately, Canadian lawmakers buckled under the corporate pressure and extended copyright laws anyway without evidence. The move effectively robs the Public Domain for an additional two decades all because multinational corporations demanded it.

So, it comes as no surprise that the multinational corporate interests continue to hijack trade negotiation process as a way of putting in completely unneccessary provisions all to satisfy their interest at the expense of everyone else. Once these interests smuggle these laws in, lawmakers simply say afterwards, “Well, it’s in the trade agreement, therefore we must pass it.” As a result, the people of the country suffer the consequences after.

Unfortunately for Kenya, if the country doesn’t protect their innovation from these multinational corporations, they will drive another nail into the coffin of online innovation for their people. Importing all the awful American copyright laws – especially without safe harbour provisions – will mean that a permanent chill on innovation will grip the country. Does Kenya want to form their own social media platform and bring in billions? Sorry, the copyright industry is ordering that shut down. Want a platform to help artists in the country be heard? Sorry, that will never happen because piracy regardless of evidence would be all the operators fault. It would be a sad day for the countries history if all this came to pass. This push for a lack of safe harbour provisions should be cause for concern for everyone.

Drew Wilson on Twitter: @icecube85 and Facebook.

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