Failing to Understand the Needs of the 21st Century: The TPP and the Notice-and-Takedown System

This post was authored by Public Knowledge Staff Attorney Jodie Griffin.

This is the fourth post in our series on how a US proposal for a copyright chapter in the Trans-Pacific Partnership Agreement (TPP) would hurt the rights of citizens in the 21st century. That proposal was leaked on the internet in February last year.

One of the ways that the TPP fails to accommodate the needs of 21st century technology is by locking the US into its current rules for when online service providers should be liable for others’ infringement, in addition to subtly chipping away at the protections given to online service providers.

Locking In the Notice-and-Takedown Process

The leaked draft of the US’s TPP copyright proposal reveals that parts of the TPP nearly mirror the US Digital Millennium Copyright Act (DMCA). Specifically, the TPP copies in great detail the parts of the DMCA that govern when online service providers (like web hosting services, search engines, and internet access providers) are liable for their users’ infringement. Perhaps the most well-known of these rules are the “notice-and-takedown” provisions, which sometimes requires certain online services to remove material after a copyright owner sends a notice alleging that the material is infringing.

For example, web hosting services like YouTube receive a safe harbor from copyright liability so long as they meet certain requirements, like not actually knowing about the infringement, not financially benefitting from the infringement, and taking down allegedly infringing material after receiving a notice from a copyright owner (this last part is the notice-and-takedown system). While the DMCA rules relating to web hosting services are the most prominent, the DMCA safe harbor rules cover a range of service providers, including internet access providers and search engines like Google. It goes into great detail on what each category of service provider must do to receive a safe harbor.

By mimicking the DMCA’s rules in great detail, the TPP would block the US from amending the DMCA safe harbors in the future without violating our trade agreement commitments. And it is very possible the US will at some point want to update the DMCA. After all, the DMCA was enacted in 1998—back when Google was just setting up in a Menlo Park garage and 7 years before the launch of YouTube. Now, 14 years later, Congress may very well wish to update the DMCA to account for how online platforms operate today.

It’s important for the US and other TPP countries to retain the flexibility to update their laws that govern the fast-moving development of online platforms. A notice-and-takedown system that places too many burdens on online service providers will ultimately stifle innovation and hamper new platforms for speech, access to knowledge, and cultural participation.

There are also, however, a couple of areas where the TPP chips away at the protections online service providers currently enjoy. For example, Article 16.3(a) of the TPP proposal require TPP countries to create “legal incentives for service providers to cooperate with copyright owners in deterring the unauthorized storage and transmission of copyrighted materials…” But the current DMCA safe harbor scheme is designed to remedy infringement, as opposed to affirmatively preventing infringement before it happens. It is true that the TPP does not directly require service providers to deter infringement, but by requiring incentives to cooperate, in addition to requiring countries to put in place a US-style notice-and-takedown system, the TPP leaves the door open for special interests to push for laws that put the burden on online platforms to search for and prevent infringement, even if their actions prevent legal uses too.

A Better Way? Canada’s Notice-and-Notice System

The TPP would, for example, prevent the US from trying different approaches to safe harbor liability and the notice-and-takedown system, like any approaches styled after Canada’s notice-and-notice system. Canada’s notice-and-notice system seems to be very effective at stopping infringemet while accommodating users’ rights, but under the current TPP proposals the US would be unlikely to ever even consider whether this system could work in the US as well.

Internet service providers in Canada developed an informal “notice and notice” system. Under this process, when an online service provider receives infringement notices from copyright owners it passes those notices along to the users, but does not remove or deny access to the allegedly infringing work. This system is now set to be fixed in Canadian law through the recently enacted Bill C-11. This law does not map exactly onto US law, but it is still useful to compare the two general approaches and envision how the US might someday want to replace parts of our notice-and-takedown system with a notice-and-notice process.

In addition to only requiring further notice instead of immediately taking down works, Canada’s system differs from the US by separating an online service provider’s obligations to respond to notices from its “safe harbor” protections that keep it from being liable for its users’ infringement. In Canada, an online service provider that fails to comply with its notice-and-notice obligations does not lose its safe harbor protection from copyright liability as punishment (unlike US law), but is instead subject to a $5,000-$10,000 fine. Clearly, a maximum $10,000 fine is much less than the US statutory damages for copyright infringement, which can be as high as $30,000 or $150,000 (for willful infringement).

What’s more, Canada’s system seems to be very effective. As Public Knowledge and Professor Michael Geist pointed out in our comments in the USTR’s “Special 301” proceeding, Rogers Communications, one of the largest internet service providers in Canada, found that 67% of notice recipients did not infringe again after receiving a first notice, and 89% stopped the allegedly infringing activity after a second notice. As a result, 99% of Rogers subscribers no longer receive infringement notices.

Not only could the TPP threaten to force countries like Canada to abandon infringement notice systems that seem to be actually working, they would tie the hands of other countries (like the US) that may someday want to update their regimes to stop infringement while accommodating the interests of users.

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