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Academics intervene on copyright safe harbour debates in the US and Europe

By | Published on Thursday 14 November 2019


Academics in both Europe and the US have this week expressed concerns about recent developments in copyright law that favour rights owners, in both cases relating to the music industry’s various battles with the copyright safe harbour.

In the former case the professors urge EU countries to minimise the impact of the safe harbour reform that is contained within the recent European Copyright Directive. In the latter, a bunch of American professors say a judge’s recent opinion in the ongoing record industry v Charter Communications case is worryingly wrong.

More than 50 European academics – including some based in the UK – have put their name to a paper all about “safeguarding user freedoms” in the context of article seventeen (formerly thirteen) of the aforementioned directive and how it is now implemented.

That was the element of the directive most proactively lobbied for by the wider music industry, of course. It increases the liabilities of user-upload platforms who have previously said they can’t be held liable for copyright infringing content uploaded to their platforms because of the copyright safe harbour that exists to protect internet intermediaries.

The paper notes that article seventeen provides two ways for user-upload platforms to still avoid liability: securing licences for any third party content uploaded by users and/or having systems in place to filter out and block copyright infringing material.

The latter, the academics say, risks infringing the rights of internet users, so therefore everyone should prioritise the former option, ie licensing.

Indeed, they add, “the legislative design of article seventeen clearly favours the first – authorisation – avenue. As noted in the statement by Germany accompanying the approval of the directive in the Council in April 2019, ‘in the European compromise, licensing is the method chosen to achieve’ the … goal under this provision”.

Now, the music industry would also prefer it if the outcome of article seventeen was more licensing of its rights, albeit on its terms. However, the academic paper notes there are different kinds of licensing, not all of which the music industry favours.

By which they mean compulsory or statutory licensing where rights owners are due payment when their music is used but lose the right to say “no” in licensing negotiations. Generally the music industry opposes any such moves in the digital market, reckoning that compulsory or statutory licensing generally forces the rates licensees pay down. And the aim of article seventeen is to force the rates the likes of YouTube pay up.

“[The directive] suggests, as only one example, direct licensing from the copyright holder, but leaves open other ways to acquire authorisation”, the academics say. “Besides direct licensing, additional options may include collective licensing mechanisms (voluntary, extended or mandatory) and statutory licensing (relying on remunerated exceptions or limitations)”.

They add: “National implementations of this provision should therefore focus on … fully exploring legal mechanisms for broad licensing of the uses covered by article seventeen”.

Much of the rest of the report focuses on copyright exceptions – scenarios where people are legally allowed to user copyright materials without licence – and concerns that any content filters employed by user-upload platforms will not be able to recognise such things. This issue was raised frequently by critics of article seventeen when the directive was working its way through the law-making process.

Over in the US, the academics are chattering about the ongoing legal battle between the Recording Industry Association Of America and the internet service provider Charter Communications.

It is one of three cases being pursued by the American labels who argue that certain ISPs should not enjoy safe harbour protection from liability for their customer’s infringement on the basis that they had deliberately shoddy systems for dealing with repeat infringers. Having such a system is required to benefit from the American safe harbour.

It’s one specific element of this case that the academics have intervened on by filing a so called amicus brief with the court. The RIAA wants to hold Charter liable for both contributory and vicarious copyright infringement. The latter is harder to prove but would allow the labels to claim higher damages. To prove vicarious infringement the labels need to show that the ISP directly financially benefited from its customer’s infringing activity.

In another RIAA v An ISP case – against Grande Communications – the vicarious infringement claim was dismissed. But when a magistrate judge recently reviewed the Charter case he said he thought the vicarious infringement element should not be axed at this stage of the dispute.

This was partly based on Charter promoting its super-fast internet speeds, something that – the labels argue – would be particularly attractive to those accessing unlicensed content via file-sharing networks.

Hitting back at those claims recently, Charter told the court: “By relaxing the direct financial benefit prong to something far more attenuated than what is required, the [magistrate judge] threatens to open the floodgates for massive liability against ISPs for merely advertising and making available high speed internet to the general public”.

The academics involved in the new amicus brief agree.

They write: “Amici submit this brief because they are concerned that [the magistrate judge’s opinion] misapplies the legal standard for the direct financial benefit prong of the vicarious liability test and improperly loosens the pleading standard in a way that would impose unprecedented risks of liability and make it nearly impossible for any ISP to win [early] dismissal of bare, conclusory, and speculative allegations”.

The precedent this case could set, therefore, would force ISPs to “either endure protracted, expensive and burdensome litigation … [or] to avoid that burden, to over-enforce and over-deter possible infringing activity by users”.

Although the amicus brief is specifically focused on the vicarious infringement element of the Charter case, you sense the academics are also more generally criticising the music industry for going after ISPs rather than the operators of specific piracy platforms or networks.

At one point they note: “One reason vicarious liability doctrine has thus far evolved in a measured and cautious way is that enforcement and deterrence at the ISP conduit level would have far more wide-reaching negative consequences than enforcement and deterrence at the individual infringer, content-host, or application-provider levels (eg individual websites or platforms like YouTube, Napster, etc)”.

It’s not uncommon for academics to express concerns about the extension of copyright protections or any new limitations being put on safe harbours and copyright exceptions.

Lobbyists and lawyers in the copyright industries often criticise such academics for obsessing about theoretical negative consequences of key reforms and rulings, arguing that many past doom and gloom predictions about stronger copyright protections infringing free speech never came to pass once those protections were in place.

Perhaps because of that, academic interventions don’t always hold huge sway over law-makers and courts. But sometimes they do. It will be interesting to see what happens in these two cases on each side of the Atlantic.