Business News Digital Labels & Publishers Legal Top Stories

America’s Re:Create Coalition calls for safe harbour reform that affects copyright owners not platforms

By | Published on Tuesday 2 March 2021


A coalition of American tech giants, start-ups, libraries, educational organisations and digital rights campaigners has sent a copyright wish list to members of US Congress. Among other things, it calls for some safe harbour reform. Although not the kind safe harbour reform you’re thinking of. According to the Re:Create Coalition, if law-makers want to meddle with American safe harbour rules, they should focus on strengthening the penalties for copyright owners who issue “abusive and fraudulent” takedown notices against safe harbour dwelling platforms.

The Coalition’s letter to Congress members states: “There has been no better time for creativity in history. Thanks to technological innovation, today there are more artists and authors creating more works on more platforms than ever before. The internet is the largest of these platforms, enabling billions to be earned by creators. These online platforms and the creators that use them rely on the exclusive rights granted by copyright law, but also on the law’s flexibility such as fair use and the Digital Millennium Copyright Act’s safe harbours”.

Of course, many of those artists and authors have actually become very critical of the copyright safe harbour over the years. The safe harbour means that an internet platform cannot be held liable for any copyright infringement undertaken by its users, providing it has a takedown system in place via which copyright owners can request that infringing content be removed. Many creators and copyright owners argue that, while the basic principle of safe harbour may be sound, its implementation since the DMCA was passed in 1998 has proven problematic.

Various issues have been raised, though a big one is that as soon as a safe harbour platform has removed some infringing content because of a takedown notice it received, the same bit of content is re-uploaded by another user. That requires the copyright owner to issue another takedown, beginning an endless game of Whac-A-Mole.

The other major gripe is that platforms like YouTube unfairly exploit safe harbour protection to strengthen their negotiating hands when seeking licensing deals from music and media companies.

That latter gripe, of course, led to article seventeen of the 2019 EU Copyright Directive, which is currently being implemented across Europe and seeks to amend the European version of the safe harbour in a way that increases the specific obligations of safe harbour dwelling user-upload platforms.

Meanwhile, lobbying continues in both Europe and the US to further reform safe harbour rules so that platforms don’t just have to operate takedown systems, but must instead have takedown-and-stay-down systems. Which would mean that, if a piece of content was removed once, the platform would then need to make sure it didn’t pop back up.

The latter idea has been embraced in Washington by Thom Tillis, Chair of the IP Sub-Committee in the US Senate. His committee led a series of discussions reviewing the copyright safe harbour last year, hearing from copyright owners who were adamant that reform was now necessary, and tech companies who strongly argued that the current system works just fine.

More persuaded by the former camp, he is now proposing reform of the American safe harbour, with a takedown-and-stay-down obligation at the heart of his proposals.

“Attempts to increase the protections provided by US copyright law may serve an important purpose”, writes Re:Create in its letter to Congress members, “but in doing so we must remain mindful that a heavy-handed approach will only stifle free speech, creativity and the economy writ large. The US government should seek the appropriate balance in copyright law to unlock the full potential of all people’s innovative and creative spirit”.

“The DMCA’s balance is largely working”, it then argues, even though “ever since the DMCA passed in 1998, the entertainment industries have been trying to get rid of its balancing provisions”. Therefore, it says, “we recommend that the DMCA’s notice and takedown regime largely be left alone”.

That said, there is actually room for improvement, Re:Create reckons. But not in increasing the obligations of the platforms that operate takedown systems, rather Congress should focus on better regulating the copyright owners that issue takedowns and further empowering the online creators who reckon takedowns issued against their content are unwarranted.

“There is a need to strengthen the penalties for abusive and fraudulent notices”, Re:Create goes on “and to make it easier to file counter-notices on non-infringing content”.

The letter also notes that some safe harbour dwelling platforms, such as YouTube, have voluntarily made their takedown systems more sophisticated, with an element of takedown-and-stay-down, as well as monetisation tools for copyright owners.

Despite the music industry’s rocky relationship with YouTube, generally the music community likes its Content ID rights management technology, and would like YouTube to make it better, and more accessible to the wider creative community. And for all other safe harbour dwelling services to build something similar.

But Re:Create raises concerns about those voluntary improvements too. “Some platforms have gone beyond the requirements of notice and takedown, implementing their own systems that allow copyright holders the option to request infringing content is taken down or to make money off of the content”, it continues.

“This system largely works well for traditional rights-holders, but can hurt the new generation of digital creators who sometimes have their content de-monetised or blocked for non-infringing uses, such as fair use”.

The letter covers plenty of other copyright issues other than safe harbour, including the there mentioned fair use principle. That’s the rather large and somewhat ambiguous copyright exception that exists in US law, providing scenarios where people can legally make use of copyright material without licence. All copyright systems provide some such exceptions, though fair use under the US system is generally much wider.

“Fair use is an essential part of our copyright system”, reckons Re:Create. “It is the yin to copyright enforcement’s yang, coexisting with each other, incentivising creativity and innovation. The Supreme Court has found that copyright is a government-granted monopoly on speech, and it is the fair use doctrine that ensures this monopoly does not violate the First Amendment”.

“Our recommendations around fair use”, it goes on, “are to ensure it is serving its purpose and allow it to flourish. As the US embarks on exporting our copyright policy through trade agreements, we need to make sure that balancing provisions like fair use and [safe harbour] are also included, as otherwise we are exporting the yin without the yang”.

As noted, although copyright exceptions exist everywhere, exporting fair use to other countries would greatly expand the scenarios where such exceptions apply.

One last noteworthy moan in the Re:Create letter relates to the recently passed CASE Act which sets up a small claims court for copyright infringement complaints in the US.

Popular with the music community – and other creative sectors – needless to say, Re:Create isn’t keen on those reforms either. “A small claims copyright court is a good idea”, it concedes, “[but] the CASE Act is unconstitutional, unworkable and needs to be fixed”.

You can read the full Re:Create wish list here.