Stakeholders Cite Concerns on Ancillary Copyrights, Liability Protections, at USTR Hearing
The Computer & Communications Industry Association, Internet Association and other industry groups again focused on concerns about EU member states’ adoption of ancillary copyright laws and some countries’ failure to comply with international norms on intermediary liability protections, during testimony Wednesday on the Office of the U.S. Trade Representative’s 2017 Special 301 proceeding. It's aimed at identifying countries and issues that threaten enforcement of U.S. entities’ IP rights. Ancillary copyright laws, seen as a tax on use of news snippets, and less robust intermediary protections that could be barriers to U.S. platforms were issues industry groups repeatedly raised to USTR last month in comments (see 1702100044).
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USTR should highlight EU members’ use of the ancillary copyright because such frameworks “present a clear danger” to U.S. IP interests, said IA Director-Trade and International Policy Ari Giovenco. Germany and Spain have ancillary laws, and France is considering one aimed at video sharing platforms. The European Parliament is also considering a pan-EU ancillary copyright aimed at allowing publishers to claim royalties from news aggregation services like Google News as part of a larger copyright law revamp, though its Internal Market and Consumer Protection Committee proposed dropping the provision (see 1702240067). The proposed ancillary right got flack from the CCIA, Center for Democracy and Technology, CTA, Mozilla and other U.S. stakeholders (see 1608290062, 1609060078, 1609120026 and 1609150053).
Proliferation of ancillary copyright laws EU-wide or in additional EU countries “runs afoul” of the Berne Convention and would “directly threaten” Facebook and other U.S.-based platforms, Giovenco said. CCIA believes USTR should name the ancillary laws as a market access barrier because existing laws have “cast a cloud of uncertainty” over U.S.-based companies’ operations in the EU, said Vice President-Law and Policy Matthew Schruers. Knowledge Ecology International is “very concerned” about the proliferation of ancillary copyright laws in the EU because Berne has held that the use of quotations and news is “sacrosanct,” said Director James Love. He said he's surprised the U.S. hasn't delivered “a more formal response” to the EU on the ancillary laws.
Schruers and others also highlighted the threat of inadequate intermediary liability protections in Australia and elsewhere. Australia’s intermediary protection only protects domestic broadband providers, and laws in Ukraine and other countries also “depart” from the U.S.-established protection norms, Schruers said. Such laws appear to “fall short” of what’s included in the U.S.’ Digital Millennium Copyright Act, Giovenco said. BSA|The Software Alliance also is concerned about attempts by China and other countries to use security concerns as a pretense to impose trade barriers, said Policy Director Leticia Lewis. She cited China’s November adoption of a cybersecurity law that in part will require critical information infrastructure companies to store important data on China-based servers. The law, set to take effect in June, was criticized by the U.S. tech sector.