President of Mexico Enrique Peña Nieto
Photo: Carlos Tischler/Getty Images
Why Trade Matters To Music Creators
On Oct. 24 more than 1,500 Recording Academy members met with their lawmakers and candidates for District Advocate day, and one of the issues they repeatedly brought up was U.S. trade policy. With American music enjoyed worldwide, the way creators’ rights are protected overseas and in trade deals remain paramount to all in the domestic music creator community.
Two immediate areas of note: the renegotiation of NAFTA between the U.S., Canada and Mexico, as well as Europe's improved copyright regulations that affect major internet platforms and content creators.
Since Aug. 27 when the U.S. and Mexico announced renegotiation agreements between President Donald Trump and President of Mexico Enrique Peña Nieto, Canada has since come aboard to complete the major renegotiation of the 1990s free trade agreement. Now terms of the United States–Mexico–Canada Agreement (USMCA) are pending final determination, with Congressional ratification expected to occur in 2019. Unfortunately, the creative community believes the intellectual property conditions included in the new agreement are outdated– exporting flawed American copyright conventions regarding hosting and infringement in ways that were beneficial for some internet businesses but not good for content creators.
A little bit of history: aspects of the 1998 Digital Millennium Copyright Act (DMCA) were put in place to protect internet hosting of content uploaded by users, because Internet Service Providers could not thrive while being held liable for everything all their users did on their networks. But what has happened since revealed another category besides ISPs who stood to benefit from the DMCA’s protections—content platforms such as Facebook and YouTube who have benefitted from protections against copyright violations on their websites.
Regrettably, the outmoded DMCA provisions are included in the agreed upon USMCA, and that’s why last week music creators called on Congress to put a stop to this denigration of copyright and establish trade frameworks that ensure internet platforms play by fair copyright rules. That's what is making the burgeoning licensed-content ecosystem grow, making livelihoods grow in the creative community instead of hurting artists' ability to survive.
While North America has looked to the past on copyright, Europe has gone about this a much better way with the approach embodied in its new Copyright Directive, which began to be drafted in 2016. Last June, we wrote about the pivotal moment when it passed out of European Parliament's Legal Affairs Committee, with its Article 13 of particular relevance to the scope of copyright safe harbors.
"It clarifies what the music sector has been saying for years: if you are in the business of distributing music or other creative works, you need a license, clear and simple," IMPALA's executive chair Helen Smith said last June. "It's time for the digital market to catch up with progress. Eyes of the world are on Europe to set a new standard for creators online."
That new standard was adopted on Sept. 12 when the European Parliament voted 438 to 226 for the directive. But that vote has met its adversaries, notably YouTube CEO Susan Wojcicki.
Fear is the message from YouTube, threatening that its own ways are best for content creators and that the compensation and exposure they receive from YouTube is gravely "at risk." Unlike the outmoded terms of DMCA safe harbors, however, Europe's copyright directive has approached fair compensation from a more modern viewpoint. She mischaracterizes Article 13's redefinition of infringement online as a financial threat she believes artists should oppose. In reality, YouTube will no doubt find a way to remain a major platform after the adopted changes are finalized and put into effect. This updated approach should be considered as the U.S. enters into trade deals with Canada and Mexico, and other nations.
Even if the NAFTA renegotiation does not implement visions of a licensed online marketplace—as Europe had adopted—the contrary way of looking at it should also be considered. Agreeing to a USMCA that is backwards-thinking on digital content must not be allowed to lock U.S. policy into obsolete ideas that would hurt digital commerce. The creative community is prepared to fight for our future by raising our voices against including obsolete definitions of the scope of infringement in new deals. These should make the most of present-day economic thinking about licensed commerce, not 1998 predictions for the internet.
The 1998 safe harbor provisions were passed when lawmakers did not know how huge the internet would become but they were trying to help it grow. They succeeded. But the free-for-all where bad actors get to do what they want and even good actors get to make their own rules would only hold back progress if continued. The "value gap" surely makes YouTube payments skimpier than they should be, as thousands of artists have protested over measly checks after millions of streams. The future is digital and a licensed ecosystem harmonizing the world market should not be put at risk by outmoded policy.