Re:Create Coalition Urges USTR To Include Fair Use, Safe Harbors In Renegotiated NAFTA

“Most Americans are using the internet and interacting with copyright law on a daily basis. Even beyond economic issues, rules affecting the internet influence our fundamental rights under the Constitution, especially the freedom of speech.”

WASHINGTON — In a letter sent to United States Trade Representative Robert Lighthizer, the Re:Create Coalition urged U.S. delegates to the renegotiation of the North American Free Trade Agreement (NAFTA) to include limitations and exceptions to copyright, such as fair use and safe harbors for internet platforms. If copyright provisions like enforcement measures are included in the trade agreement, the U.S. must also advocate for inclusion of balanced copyright measures. Fair use adds $2.8 trillion to the U.S. economy, benefitting 18 million workers. Meanwhile, safe harbor provisions are critical to the internet economy, startups, and U.S. creators, as well as traditional American businesses that leverage U.S. online platforms to export goods and services to a global audience.

Below are highlighted excerpts of the letter, which is available here. Executive Director Josh Lamel also penned an op-ed in The Hill on this issue, which can be found here.

“As you undertake the task of renegotiating the North American Free Trade Agreement    (NAFTA), we write to express our serious concerns about positions the Administration is reportedly considering that will have profound negative impacts on our economy, employment and free speech. If NAFTA is going to include provisions on copyright then it is imperative that the agreement include critical rights and protections under U.S. law, including both limitations and exceptions to copyright such as fair use and clear safe harbors for internet platforms. …

“Fair use adds $2.8 trillion to the U.S. economy or approximately 16% of G.D.P. Fair use benefits 18 million workers, which is 12.5% of the American workforce. In 2014, America exported $368 billion in fair use-based goods and services, a 21% increase from 2010. Simply put, the fair use-based economy is one of the largest and fastest growing parts of the American economy, and has become a cornerstone of not just our global digital leadership, but the United States’ global economic leadership as well.

“The Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (TPA) requires that the intellectual property chapter of a U.S. trade agreement “reflect a standard of protection similar to that found in United States law.” Fair use is, of course, an essential component of the overall standard of U.S. copyright protection, and it must  be reflected in NAFTA for the agreement to meet that TPA requirement. …

“NAFTA must also include safe harbor protections reflecting those in Section 512 of the Digital Millennium Copyright Act (DMCA) that also should respect the notice and notice system in Canada.  Much like fair use, safe harbors are a key part of U.S. law and are required under Trade Promotion Authority…It is not hyperbole to say that the entire Internet economy depends on these safe harbors.  Economists estimate that enabling countries to weaken intermediary liability protections would cost the U.S. over 425,000 jobs, while decreasing GDP by $44 billion annually. …

“Contrary to the claims of the entertainment industry, safe harbors are far more critical to the growth of startups than they are to large internet companies. Startups lack the legal and technical resources to adapt to more aggressive monitoring requirements…81% of VC investors said they would be more likely to invest in a digital content platform under a weak economy with safe harbor rules than in a strong economy that lacked limitations on intermediary liability. In other words, safe harbors have a stronger impact than economic conditions on whether VCs decide to invest in startups.”

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