For more than a decade, countries around the world have mimicked United States policies regarding copyright infringement.
The DMCA, which refers to the 1999 Digital Millennium Copyright Act, has become the standard for how rightsholders and online services deal with pirated content.
While many believe that this is still sufficient, in recent years criticism has swelled. Many prominent copyright holders believe that the DMCA is ineffective, as removed content can reappear a day later. In addition, they feel that online services use the law as a shield to profit from copyright infringements.
This critique of the DMCA has now led to a situation where some of the largest media companies advise foreign governments not to copy US copyright law. This is also the message the Motion Picture wants to send to Kenya.
In a letter, addressed to the US Trade Representative (USTR), which is currently considering a new trade deal with the African country, the movie industry group notes that exporting US copyright law might not always be a good thing.
Anissa Brennan, who’s the Senior Vice President International Affairs and Trade Policy at the MPA, stresses that simply copying the DMCA isn’t going to cut it. Instead, a trade deal should include more effective anti-piracy measures.
“With regard to online enforcement, a U.S.-Kenya agreement should include disciplines that can effectively address online piracy. This means moving away from a rote recitation of Section 512 of the U.S. Digital Millennium Copyright Act,” Brennan writes (pdf).
“Rather, we recommend moving to highlevel language that reflects the fundamental principles of the DMCA. Such an approach would be fully consistent with U.S. law and create some policy space for Kenya to be innovative in its approach to online piracy.”
Or put differently, the MPA wants Kenya to implement copyright legislation that’s more strict or effective than the US has in place.
What the more ‘innovative’ approach looks like isn’t explained in detail. However, the Hollywood group previously advocated in favor of “staydown” policies, where online services have to make sure that infringing content or links don’t resurface.
In addition, the MPA also argued in favor of ‘proactive’ measures against infringing content, which hints at upload filters. At the same time, legislation should make it easier to hold online services liable for infringing users, instead of offering the DMCA’s broad ‘safe harbor’ protections.
The MPA has lobbied US lawmakers for similar changes. While Congress is currently reviewing the DMCA, no concrete changes have been suggested yet. With their letter, the MPA suggests that Kenya could be a pioneer in this area.
While the DMCA is no longer seen as sufficient, the MPA does urge the African country to implement another US copyright policy that has become a global standard. That is, a copyright term of the author’s life plus 70 years, which is substantially longer than the current 50-year term.
“A U.S.-Kenya agreement should reflect the global consensus on term of protection for copyrighted works which is life of the author plus 70 years and a comparable term for works measured by date of publication,” the MPA writes.
In addition, there are various other proposed changes, including statutory damages for copyright infringement, as well as the option to issue injunctions against third-party services in copyright lawsuits.
Whether any of these changes will make their way into potential new trade agreements remains to be seen. During the negotiation phase of the United States–Mexico–Canada Agreement there were also repeated calls not to copy the DMCA language, but those proved to be unsuccessful.
