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Safe harbours discussed at Westminster copyright debate, but only from the music camp

By | Published on Wednesday 9 September 2015


It’s no secret that a top priority for the music rights industry in 2015 is reforming the safe harbours contained within European and US copyright law, which allow technology companies to avoid liability for copyright infringement committed by their customers via their servers or networks. Said firms benefit from the safe harbours providing they have a system for removing copyright infringing content from their platforms, if and when they are made aware of it by a rights owner.

As previously reported, record companies and music publishers don’t have a problem with the principle of safe harbours, just with what kinds of companies are allowed to use them. ISPs? “Yes”. Server hosting companies? “Yes”. User-upload content platforms like YouTube, Daily Motion and SoundCloud? “No, no, no”. But currently they do.

With European copyright laws up for review, the International Federation Of The Phonographic Industry officially placed safe harbours at the top of its agenda when revealing its latest set of record industry stats earlier this year. Since then other music industry trade bodies have also spoken up, though of late it is PRS For Music that has perhaps become most vocal on this issue, mainly via the Streamfair campaign it launched in July, and partly via its litigation against SoundCloud which, if it ever gets to court, will test European safe harbour laws as they currently stand.

And safe harbours also dominated a speech given by PRS’s Head Of Legal, Policy & Public Affairs, Frances Lowe, to the Westminster Media Forum yesterday. “The UK’s songwriters and composers play a significant role in the UK economy and its exports”, she said. “And the EU is their most important market. And their current priority is securing fair income from the use of their music across the online ecosystem, so that careers can be sustained”.

“Songwriters are currently being squeezed”, she added, before targeting in particular the “user-upload platforms that are unlicensed or under-licensed” because they claim they are protected by safe harbours. This means they pay nothing or less for the songs they use, “despite the fact that without those songs they would not be able to raise capital, or pay their shareholders, or make a profit”.

This not only affects songwriters, she argued, but also those streaming services which do licence all rights at market rates, and who are therefore at a disadvantage to the user-upload platforms, which usually provide a plethora of freemium content.

The problem, Lowe said, is a lack of clarity on what kinds of services can and cannot rely on the safe harbours, them stemming from laws written long before a YouTube or SoundCloud-style business model had even been conceived. And while she welcomed a recent German court ruling that arguably (though not unequivocally) sided with German collecting society GEMA on YouTube’s responsibilities for policing uploaded content, Lowe said judicial interpretation had been inconsistent on this issue.

And while PRS presumably hopes to get some favourable and clear judicial interpretation if and when its SoundCloud litigation gets to court, Lowe noted that the European Commission had indicated copyright reforms might clarify the rules around safe harbours. “We support this proposal” she said. “Online services built on user-upload platforms which make content available to the public should not be able to plead safe harbour”.

It was a straight-forward argument, though, interestingly, at an event where representatives from most copyright industries spoke, it was only the music rep who mentioned the safe harbours problem.

For the film, television and sports representatives on stage it seemed that the big issue with regard to the current review of European copyright law is geo-blocking, and proposals that new laws force content providers to offer more multi-territory licences, to allow users to access content from abroad, and to ensure portability, so that a Netflix subscriber can still access his or her account wherever in the world they may connect to the internet.

The message from these rights owners is that demand for multi-territory licences is not as big as regulators think, that only a tiny minority of consumers are seeking streaming services that are portable beyond borders, and that new geo-blocking proposals currently being mooted around Brussels are unnecessary, and would favour major players over niche or national services to the detriment of diversity in the market. Basically the message was: “The market is addressing any problems already, so just leave things well alone”.

The proposed new geo-blocking laws might throw up problems for the music industry too, though with labels, publishers and even collecting societies now increasingly moving to multi-territory licensing anyway, music rights owners are much less involved in this debate, while the TV, film and sports industries – while presumably not opposed to the music industry’s call for clarifying and limiting safe harbours – are not especially pushing this agenda in political circles.

Which is only interesting in that politicians have short attention spans, and have a tendency to lump all copyright industries together when undertaking widespread reviews of IP law. When asked if the music industry would get its way on safe harbours in Europe, bearing in mind the power of the Google lobby, one music lawyer mused to CMU earlier this year “maybe if they get big TV and the Premiere League on board”. But from yesterday’s Westminster Media Forum, that is unlikely to happen, certainly in any active way.

Though if the music industry can speak as one – which in itself is unusual – perhaps there is still an opportunity here. Providing they have a good answer when Google’s YouTube enters its inevitable response: “But we fixed all that with Content ID”