White Paper – Building Trust #01: Safe Harbour

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Platform responsibility and online harms have become big talking points among policy makers and the political community in recent years.

While the debates continue, it’s clear that the regulation of online platforms is going to increase in the years ahead, and that the corporate reputation of digital companies is going to increasingly depend on well-thought out and communicated policies in this domain.

It’s important that platforms, rights-holders and responsibility facilitators are all well informed to ensure and enable productive discussions around these topics. But understanding many of these issues means navigating often complex areas of law and contentious social debates.

To help inform and educate all the stakeholders, Friend MTS has teamed up with media and music consultancy CMU Insights to present Building Trust, a series of white papers exploring the economic and social responsibilities of digital platforms and other online service providers.

In this first white paper we look at the debate around the copyright safe harbour, and the changing responsibilities of platforms that facilitate and enable the distribution of content.

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Safe Harbour: At a Glance

The copyright safe harbour is a legal principle found in many countries that limits the liabilities of internet companies whose customers use their networks or servers to distribute other people’s copyright-protected content without permission.

Those companies can usually avoid liability for copyright infringement on their networks providing they fulfil certain obligations. They must have a system in place via which rights-holders can request that any infringing content be removed. And they must develop and enforce effective policies for dealing with repeat infringers among their user-base.

First conceived in the late 1990s as internet usage started to go mainstream, this principle has proven controversial in various ways over the subsequent two decades. And in more recent years reforms have been proposed to refine the safe harbour, usually by increasing the obligations of those companies and platforms that claim safe harbour protection.

Four key debates include:

  • Whether the takedown systems operated by safe harbour dwelling platforms should be more sophisticated.
  • Whether the repeat infringer policies of safe harbour dwelling platforms are being properly enforced.
  • Whether user-upload platforms should qualify for safe harbour protection at all.
  • Whether takedown systems properly take into account copyright exceptions and fair use.

Those debates have taken place in various forums and jurisdictions, but in particular…

  • During the negotiation and current implementation of the 2019 European Union Copyright Directive.
  • As part of new debates around platform responsibility in the EU and United Kingdom.
  • When the US Copyright Office undertook a formal review of the safe harbour between 2016 and 2020.
  • Via new proposals for safe harbour reform being presented in US Congress via the Digital Copyright Act.

As a result of these debates, the copyright safe harbour is already changing in the EU, with the obligation of user-upload platforms in particular set to increase. Meanwhile similar and additional reforms could follow in the years ahead in the UK, US and elsewhere.

To help platforms, rights-holders and responsibility facilitators stay on top of all of these debates, this first white paper in the ‘Building Trust’ series provides a concise guide to some copyright law basics and the safe harbour itself, before reviewing and explaining the ongoing discussions and reforms.

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