US tech companies complain to USTR of increasing 'hostile' copyright environment impeding global expansion

By Emmanuel Legrand

Tech companies have complained of "an increasingly hostile environment" around the world with countries adopting copyright legislation that "impedes US Internet companies from expanding services abroad," according to a filing from the Computer & Communications Industry Association (CCIA) with the US Trade Representative, as part of the USTR's Special 301 Review process. 

  CCIA represents the main tech companies such as Amazon, CouldFlare, eBay, Facebook, Google, Pandora, Twitter, among others. "These adverse conditions manifest through court decisions and new copyright regulations that depart from global norms on intermediary responsibility," reads the filing. 

  It continues: "Foreign countries are increasingly prone to imposing onerous intellectual property-related regulations, aimed at U.S. Internet companies. These countries are pursuing legislation that disadvantages U.S. Internet platforms and online cloud services."

Flexible limitations and exceptions

  For the CCIA, a "robust framework must include protections for online intermediaries and flexible limitations and exceptions to copyright that are necessary for the development of next-generation technologies such as artificial intelligence and machine learning."

  High on the agenda of the CCIA is the EU’s Copyright Directive, adopted in 2019. "CCIA identifies Articles 15 and 17 as concerns and as they represent a departure from global IP norms and international commitments, and will have significant consequences for online services and users. These rules diverge sharply from US law, and will place unreasonable and technically impractical obligations on a wide range of service providers, resulting in a loss of market access by US firms," reads the filing.

  "In the case of the EU’s copyright reform, the motivation to target primarily US firms is clear," reads the submission, noting that online services "will likely have to use filtering technologies in order to comply with the requirements under Article 17" which "upends longstanding global norms on intermediary liability."

Inconsistent interpretations of Article 17

  The CCIA also objects to the need for online services to make "best efforts" to locate rights holders and secure licenses, and the need to act expeditiously to remove content once notified by rights holders and made best efforts to prevent their future uploads.

  This latter requirement, according to CCIA, "effectively creates an EU-wide ‘notice-and-staydown’ obligation," while the inclusion of a “best efforts” standard is "a subjective but still mandatory standard open to abuse and inconsistent interpretations at the Member State level." CCIA believes that "mitigation measures are necessary to make Article 17 workable."

Balanced IP regulations

  CCIA also has issues with "ancillary protection" which it describes as "a violation of international copyright obligations." For example, it writes that the imposition of ancillary rights through a snippet tax, such as the ones planned in the Copyright Directive (Article 15) and in Australia (Code of Conduct), "conflicts with US law and violates long-standing international law that prohibits nations from restricting quotation of published works" and "undermine market access for US services."

  “Countries continue to pursue copyright and related rules that limit access to information and prevent innovative U.S. exporters from accessing global markets. We encourage USTR to reflect in its upcoming report that countries without balanced IP regulations are a barrier for one of the US’s largest exporters in trade in services," said CCIA President Matt Schruers.