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US Copyright Office announces review of safe harbours

By | Published on Thursday 31 December 2015

US Copyright Office

At the end of a year in which ‘safe harbours’ have consistently topped the agenda of the music industry’s lobbyists, the US Copyright Office has announced a review of ‘section 512’, which contains the safe harbours in American copyright law.

As much previously reported, the safe harbours provide protection to technology companies whose servers or networks inadvertently assist in the distribution of unlicensed content. Providing that distribution is the result of user or automated activity, and providing there is a ‘takedown system’ for rights owners, the tech firm cannot be held liable for copyright infringement.

Safe harbours have been a talking point in the music community this year because of increased frustration over set-ups like YouTube, which rely on safe harbour protection to operate ‘opt-out’ rather than ‘opt-in’ streaming services. This, music rights owners complain, gives the likes of YouTube an unfair advantage at the negotiating table, which means opt-out services get preferential rates resulting in a ‘value gap’ in the wider digital music market.

The music industry doesn’t want to axe safe harbours outright, recognising that such a move would be totally impractical. But record labels and music publishers want safe harbour rules to be revised, so that a service like YouTube could no longer rely on protection, and would therefore need to ensure content was kept off its platform until a rights owner opted-in.

To date, most attention has been put on similar provisions that exist in European law, because the European Commission has been reviewing copyright rules as part of its Digital Single Market initiative all year. But an announcement by the US Copyright Office yesterday means that there will now be an opportunity for the music industry to argue its case on safe harbours in America too.

The office said that its review would cover “the general operation of section 512’s safe harbour provisions, the processes for issuing takedown notices and counter notifications, and the legal standards that apply under the statute”. The Copyright Office is inviting submissions from interested parties, the deadline for which is 21 Mar, with public meetings then planned to further discuss the issues.

The tech lobby – led by the likes of Google and Facebook – is likely to fight hard against any restriction of the safe harbours, in Europe or the US. Though after a year of shouting about the safe harbour problem with increased volume, the music industry will welcome the opportunity to formally present its arguments in the jurisdiction where many of the web giants exploiting safe harbours are based.

To read more on why the music industry has made ‘safe harbours’ its top lobbying issue this year, read this free CMU trends article on the topic.