As negotiations continue on a trade deal between the United States and the United Kingdom, it is crucial that policymakers push for balanced and commonsense intellectual property frameworks around the world so that startups can grow globally. This July, the U.S. and the U.K. entered the third round of negotiations on an expected trade agreement, following the U.K.’s withdrawal from the European Union earlier this year. While a number of topics are on the table, including critical digital trade provisions, the intellectual property provisions will prove essential to U.S. startups.
Balanced and unambiguous IP frameworks, including those for addressing accusations of online copyright infringement, are essential to startups. For startups to succeed at home and compete on a global stage they must be able launch and grow without facing undue burdens, risk, and confusion about how to respond when their users are accused of infringement. The IP provisions in the U.S.-U.K. agreement should be consistent with U.S. law and, at minimum, be as robust as those reflected in the U.S.-Mexico-Canada (USMCA) agreement, which went into effect in July.
USMCA, which passed with overwhelming bipartisan support last year, put in place a modern, commonsense digital trade framework and an IP chapter that embraced balanced copyright frameworks similar to those found in the U.S. These provisions provide U.S. startups with the certainty they need to launch and expand their business operations in a global and competitive online marketplace. Importantly, the copyright provisions in these trade agreements are also consistent with U.S. law: Section 512 of the Digital Millennium Copyright Act (DMCA), which has helped provide the legal foundation for platforms that host user-generated content. Enshrining a similar framework in USMCA was a good first step, but negotiators should not stop there—a comparable digital trade framework should be an integral component of future trade agreements as well.
Predictable and balanced intermediary liability frameworks like those reflected in Section 512 of the DMCA are paramount to a startup Internet platform’s ability to exist and grow while hosting and moderating user-generated content. Section 512 of the DMCA, and its notice-and-takedown framework and copyright safe harbors, have proven crucial for startups and the users and creators they serve. Through this framework, rightsholders can identify allegations of infringement, and if online service providers remove the accused content and comply with the requirements of the law, they will not be automatically liable when their users are accused of infringement that they have no knowledge of or involvement in. It has been enshrined in U.S. law for two decades and provided essential certainty for startups and online service providers. In order for today’s startups to compete in the global market, they must be afforded the same certainty as their predecessors.
Copyright safe harbors are integral to a wide variety of Internet-based services, including e-commerce websites, social media platforms, search engines, cloud services, and more. Establishing clear legal frameworks in trade agreements that are consistent with U.S. law would give startups the certainty they need to compete across the globe. Relying instead on a patchwork of copyright laws would impose huge compliance costs on startups and would burden them with the need to navigate varying, complex frameworks, often without the resources to do so.
Especially in this area—where U.S. law has worked so well to support startups, the U.S. economy, the Internet ecosystem, and Internet-enabled creators—it is essential that trade negotiations continue to focus on securing similar benefits for U.S. companies operating abroad. Yes, it is always possible that U.S. laws could be amended. Indeed, in the past, a few lawmakers have raised the possibility of amending the DMCA. Lawmakers have been reviewing the law in some capacity for the better part of the last decade, but there has never been consensus around re-writing the DMCA, and similar language has been included in 11 trade agreements. And, again considering the resounding success enjoyed thanks to the DMCA, any proposals to change Section 512 of the DMCA would be very controversial in the U.S. and create significant upheaval in the Internet ecosystem. If U.S. negotiators were to avoid including provisions of U.S. law presently under review in trade agreements, the U.S. would likely be unable to enter into trade negotiations at all.
As U.S. Trade Representative Robert Lighthizer recently—and accurately—noted, it is not the job of USTR to write hypothetical changes to settled U.S. law into trade agreements. Instead, the role of USTR is to negotiate trade deals that reflect existing U.S. law and are beneficial to the success of American businesses. And including balanced copyright protections and safe harbors is consistent with the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (TPA) which called for just that. USTR must continue to fight for balanced copyright frameworks and a strong digital trade framework in the U.S.-U.K. trade agreement and future trade agreements, using USMCA as a model for negotiations.
