Last weekend, left-wing candidate and political heir of President Rafael Correa Lenin Moreno was elected President of Ecuador.
Now, President-elect Moreno has the opportunity to stop one of his predecessor’s most undemocratic practices: using copyright for political censorship. It’s time for some copyright glasnost, Lenin.
We’ve long warned that excessive copyright can be a tool for political censorship, and argued that freedom of expression should be a fundamental consideration in the drafting of copyright legislation. Ecuador has recently passed a law, the Código Orgánico de la Economía Social de los Conocimientos, Creatividad e Innovación, that allows the government to shut down Web pages based on accusations of copyright infringement. Our partners in the country are worried, given the Ecuadorian Government’s has a history of using copyright law to silence political opposition.
For example, in May 2016, Twitter notified DigitalRightsLAC, a digital rights newsletter written by four Latin American civil society organizations, that it had removed 8 of the organization's tweets criticizing the Ecuadorian government because they were infringing copyright. As explained by R3D, the copyright claim came from the Ecuadorian Secretaria Nacional de Comunicacion (the country’s communications regulator) who denounced DigitalRIghtsLAC for using copyrighted pictures taken from the official blog of President Correa, Enlace Ciudadano. This case is not unique–as reported by the Ecuadorian digital rights NGO Usuarios Digitales, forty cases of copyright related censorship cases were identified during 2016.
These copyright infringement claims are possible due to the Ecuadorian government’s abuse of a provision of United States copyright law–the “Safe Harbor” provision of the 1998 Digital Millennium Copyright Act (DMCA).
The Safe Harbor provision protects internet intermediaries, such as Google or Twitter, from copyright liability over their users’ activities, but requires them to remove allegedly-infringing content at the request of copyright holders. Given that many internet intermediaries are U.S.-based companies, and that U.S. law recognizes other jurisdiction’s copyright protection, the domestically designed DMCA has global implications.
Thanks to the DMCA, internet intermediaries are not forced by copyright law to censor what their users create. This encourages freedom of expression and dynamism in the internet ecosystem: Snapchat, Facebook, and YouTube, among many other platforms, simply could not exist in their current form if they had to review every single photo and video posted on their sites. And this is not simply a technological problem. While identifying copyrighted content using computers is sometimes possible, human judgment is often required–for example, to determine if the use falls under the “fair use doctrine,” which allows certain uses of copyrighted material in situations such as commentary, criticism, news reporting, research, teaching or scholarship.
However, many online services have streamlined the process of complying with DMCA requests for takedown of copyright content in a way that defaults to removing content first and notifying users of the removal and possible redress mechanisms second. While standing up for fair use is technically possible under these circumstances, a notification of possible copyright infringement is intimidating for most users. This discouragement is often even stronger for users located outside the United States, who often do not speak English and have no idea how to navigate the complex and expensive American legal system.
Thus, by exploiting streamlined takedown processes the practical barriers to self-defense by regular internet users, the Ecuadorian government has repeatedly used American copyright to censor political dissidence online, and created a larger blueprint for online censorship.
Because of the global character of the internet, and the centrality of the U.S. to it, domestic American law has global implications. Provisions designed for the American context can have unintended and unwanted consequences for citizens of other countries. The design of domestic American law must consider how it affects a global platform such as the internet, and the serious potential for abuse of copyright law.
In Ecuador, President Moreno should try to use copyright for what is for: encouraging innovation. Ecuadorians should not permit the government to use copyright for political censorship.