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US Copyright Office calls for new submissions on the safe harbour debate

By | Published on Tuesday 15 November 2016

US Copyright Office

With not much going on in America last week, the US Copyright Office announced phase two of its previously reported review of the big bad safe harbour, seemingly being a bit confused as to what to do with all the heat it absorbed from interested parties during phase one.

As previously reported, the Copyright Office announced late last year that it was reviewing the safe harbours that say that internet companies cannot be held liable when their customers distribute content without licence over their networks, providing they are unaware of said copyright infringement. It’s the safe harbours, which in the US originate in the Digital Millennium Copyright Act, that allow YouTube to operate an ‘opt-out’ rather than ‘opt-in’ streaming service.

The review rallied the US music community, which reckons YouTube basically exploits a loophole in copyright law to get away with paying much lower royalties to the music industry, all of which resulted in a much more high profile “YouTube is evil” campaign led by labels, publishers and some big name artists. The music industry wants safe harbour rules revised so services like the Google video site don’t qualify for protection.

Announcing its second call for submissions, the US Copyright Office wrote last week that this was “an opportunity for interested parties to reply or expand upon issues raised in written comments [previously] submitted and during the public roundtables held in May. The Copyright Office also invites parties to submit empirical research studies assessing issues related to the operation of the safe harbour provisions on a quantitative or qualitative basis”.

The Copyright Office notice then summarises various issues raised and questions asked by different stakeholders in both the creative and tech industries during phase one, basically providing guidance as to what specific topics groups submitting phase two papers should focus on.

It also suggests that respondents consider referencing more recent court cases on safe harbour issues, including the big BMG v Cox Communications legal battle, while also saying it would be interested in hearing more about how other countries are addressing safe harbour issues, which likely means proposals in and around the European Copyright Directive, the safe harbour element of which the US music community has already welcomed.

Interested parties have until 6 Feb to submit their new papers, or 8 Mar for empirical research. Of course, the recent axing of the boss of the US Copyright Office, Maria Pallante, has concerned some in the music community, who feel that her as yet to be appointed replacement may be more prone to support the tech lobby on key issues like this one. We’ll see, I guess.