The North American Free Trade Agreement is a pretty important piece of negotiation document.
And it makes sense that entities such as the Motion Pictures Association of America along with Recording Industry Association of America would want to have a say in it.
As expected, both the MPAA and the RIAA have submitted their proposals to the North American Free Trade Agreement.
And in the process of doing so, have made their positions crystal clear.
So what do they want?
Well, both want US allies such as Mexico and Canada to commit more.
The MPAA and RIAA want them to toughen up their copyright laws.
These “improvements” to their copyright laws will come in the form of more restrictions on certain “safe harbor” provisions.
The MPAA and RIAA want these countries to get rid of them because they go beyond what is considered as current US practice.
As mentioned in the introductory piece on this article, the North American Free Trade Agreement is a very important piece of document.
It is so because of the countries that sign this document.
At the moment, the document acts as an agreement between three powerful countries.
These countries are as follows,
- The Unites States of America
The North American Free Trade Agreement came into existence about 25 years ago.
Back then two, the same three countries (the US, Canada, and Mexico) signed the negotiated document.
Now, all countries have had more than a quarter of a century to develop the document.
The developments to the document, so far, have not impressed any of the three countries.
And that is the reason why the United States of America wants to bring it up to date.
This “modernization” will, of course, require a lot of cooperation from the other two countries.
Namely, Canada and Mexico.
The US government has recently said that while their economy and the country’s businesses have managed to evolve and changed at a considerable rate in the last twenty-five years, the NAFTA document has not.
This makes it clear to all parties that the US seriously wants to modernize the NAFTA agreement.
Keeping this firmly in mind, the United States government has requested comments from all the concerned parties.
The US government believes that seeking such direction from all parties would help the government to negotiate a better deal for its economy.
So, in short, we know that the US government wants US companies and businesses to come forward with their problems regarding NAFTA and sort them out.
And because of that groups such as RIAA and the MPAA have quickly moved forward to let the US government know their positions on some critical issues.
For these two organizations, the critical issues are usually,
- Copyright laws
- Punishment for copyright infringements
So is it really a surprise that both the MPAA and RIAA want the US government to put issues such as intellectual property high on its list of agendas.
As indicated earlier, both the MPAA and the RIAA have submitted their comments to the US government.
The MPAA has written (in its submission), that the lifeblood of the United States television and motion picture industry is copyright.
So it stands to reason why the MPAA wants to place such issues at the very top of its and the US government’s priority list.
The MPAA wants the US government to do everything it possibly can to secure strong laws regarding enforcement and protection disciplines the trade agreement’s intellectual property chapters.
The RIAA has written something very similar in its submission to the US government.
It noted in its submission that forceful intellectual property rights enforcement and protection are indeed critical when it comes to the music industry as far as trade priorities are concerned.
The RIAA also said that better NAFTA agreement could help the industry to grow quicker than before.
It wrote that with intellectual property rights, it could create more and better jobs.
Furthermore, a strong NAFTA could help the RIAA to make impactful contributions to the US economy.
Hence, it could help the US economy to grow.
Stricter intellectual property rights will also enable the organization to improve the security of its properties.
This, in turn, would allow all concerned parties to invest more in artists.
Consequently, artists will come up with more creative work than before and will drive the US economy with technological innovation.
So it is clear now that both the MPAA and the RIAA have some specific and clear demands.
It is also clear that each, MPAA and RIAA, want an environment which is very different from the current one.
To put it in simpler words, both want the law to not only go after infringers but also ISPs.
Both groups consider internet service providers along with services and platforms equally blameworthy of piracy.
As far as the RIAA is concerned, the organization has focused the majority of efforts on Value Gap.
What is the Value Gap?
It is a term that can thank its existence to organizations such as the RIAA and the MPAA.
Basically, it is a phenomenon that is only found on sites where the content comes purely from users.
Or sites that are filled with user-uploaded content.
The most known of such sites is, without any competitor, YouTube.
YouTube offers copyright infringing content for all people without any charge.
Of course, YouTube doesn’t infringe copyrights itself because all of the site’s content is user-generated.
Or user-uploaded in other terms.
This allows YouTube to avoid any liability issues because of Section 512 of the DMCA.
The RIAA recently wrote that a lot of services allowed user-uploaded content.
Such sites had developed sophisticated and complex on-demand music (online) platforms.
Furthermore, the RIAA wrote, such sites used the scenario described above to shield themselves.
This allowed such sites to avoid issues such as licensing of music content on fair terms just like some of the other online digital services.
The RIAA had another problem with such user-uploaded content sites.
It said these types claimed that they were not legally responsible for the content (music) on their site because they just distributed it via their site.
The RIAA further wrote that online services such as,
- Apple Music
have to, or rather are forced to, compete with other online services that claim no liability for the content (music) their platform distributes.
Which is, of course, unfair on sites which do claim liability and do business via proper licensing.
Here is the problem though:
YouTube is not a Mexican website.
It is also not a Canadian website.
YouTube is an American video-sharing website which has its headquarters in California.
You might ask, what does that have to do with RIAA, MPAA and of course NAFTA?
Well, a lot.
The thing is, if YouTube is only exercising its right and actually is not acting illegally under existing US current law, how can the US government convince Canada and Mexico to not do the same?
In fact, how can the likes of Mexico and Canada even do better if a US company cannot?
The RIAA has the answer.
It says that the US government should hold them to stricter standards.
Standards that came into existence that the group envisioned when the US Congress passed the DMCA.
As mentioned before, the Congress passed the DMCA back in 1998.
The RIAA also made it clear that it did not want platforms to continue operating as they have since the Congress passed the DMCA.
It has demanded some other things as well.
Basically, the RIAA wants the US negotiators to protect the safe harbor by protecting its original intent.
It has also asked the US government to pursue a high-standard and high-level service provider liability provision.
The RIAA says that only passive intermediaries who don’t have the requisite knowledge of any of the copyright infringements on their platform should have access to such provisions.
The music group says that services who actively engage in providing copyrighted content to the public, should NOT have access to such liability provisions.
To put it another way, RIAA wants the US government to remove safe harbor protections for sites like YouTube and others.
Right now such sites enjoy a massive amount of protection because of the laws in the country.
We know the RIAA is serious about copyright infringement because its submission to the US government for NAFTA is not only complete, it is comprehensive.
The group has tried to cover all aspects of the copyright infringement problem.
That’s why it has also asked the US government to negotiate flexible safe harbor provisions as far as NAFTA is concerned.
This will allow the document to hold up in an event that the Congress tightens up the DMCA as a response to the safe harbor laws study which is currently underway.
The RIAA has also stated that NAFTA, under no circumstances, should support interpretations of the law that are obsolete.
Obsolete in the sense that they are no longer reflective of today’s advanced digital economy.
Moreover, NATA should also not support interpretations which threaten the future of trade.
According to the RIAA, NAFTA has to ensure that digital trade is made legitimate and sustainable.
The MPAA has similar problems and solutions to those problems.
More specifically, both the MPAA and the RIAA, have reservations about Section 512.
In short, both consider it as a huge problem;
Both think that the courts have let copyright holders group down.
By allowing online services to not hold true to the original intent.
Both groups agree that the original intent was to give promote a system which shared the overall responsibility between service providers and copyright owners.
In this regard, the courts have failed, say the MPAA and the RIAA.
Moreover, both the groups believe the US can hold Mexico and Canada to higher standards when it comes to intellectual property rights.
The MPAA wrote to the US government that the group recommended a new approach to an important problem.
That problem is of course of the trade policy provision.
The MPAA says that all parties should agree to move take the new approach and move to a high-level language.
This high-language language would establish intermediary liability along with appropriate limitations on that liability.
The MPAA believes such an approach would suit the US because it is in accordance with the law.
It would also avoid the earlier misinterpretations by overseas courts along with US policymakers.
Additionally, such a move would also modernize NAFTA.
And in turn that will help the Trade Promotion Authority’s negotiating objective.
What is that objective?
It is, to ensure that standards of enforcement along with protection must keep pace with developments in technology.
With that said, the MPAA isn’t just thinking about correcting the US government’s mistakes.
It also has problems with the government of Mexico.
Mainly with the Mexican government allowing unauthorized camcording.
According to the MPAA, authorities linked audio and video recording of over 85 films to Mexican theaters.
And that was just for the year 2016.
But none of the people involved in such an activity got punished.
Because recording is not a criminal offense under current Mexican law.
But for groups like the MPAA, there is another lingering problem.
Criminal sanctions only apply to commercial scale infringements when they are done for profit.
The MPAA believes such laws have hampered the industry.
Moreover, it also believes such provisions that obstructed enforcement of laws that deal with the camcording problem.
It also says that current criminal sanctions are also bad for enforcing rules against online infringement.
What type of online infringements are we talking about here?
Online peer-to-peer file sharing activities which lead to piracy.
The MPAA wrote to the US government that such pirate activities had reached a massive scale.
And that it hurt the US rightsholders a great deal.
But the law could not do anything because the infringers, in this case, did not infringe for profit.
According to the MPAA, the US government must do more to change and modernize NAFTA.
And to do that the US government must follow what it has followed for other bilateral free trade agreements.
That is, to provide provisions for criminal sanctions against piracy done on commercial scale infringements even if there was no proof of a profit motive.
Both the MPAA and the RIAA talk a lot more of how they would like the US government to negotiate NAFTA.