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22 May 2020CopyrightSarah Morgan

Safe harbour system ‘unbalanced’, says US Copyright Office

The  US Copyright Office has concluded that the safe harbour provision of the Digital Millennium Copyright Act (DMCA) is “out of sync” with Congress’ intent.

The safe harbour provision, section 512 of the DMCA, outlines the steps online service providers (OSPs) must take to be free of copyright liability for infringements on their networks.

In a 200-page  report issued yesterday, May 20, the US Copyright Office said that while it was not recommending any wholesale changes to section 512, there were areas where “Congress may wish to consider legislation to rebuild the original balance between rights holders and OSPs”.

According to the Copyright Office, which received 92,000 comments in relation to the topic, Congress’ original intended balance—between providing important legal certainty for OSPs and protecting the legitimate interests of rights owners—has been “tilted askew”.

The Copyright Office received “dramatically varied opinions” from both OSPs and content creators about the law.

Many OSPs commented that section 512 was a success, “enabling them to grow exponentially and serve the public without facing debilitating lawsuits”.

But rights owners had grave concerns with the ability of individual creators to meaningfully use the safe harbour system to address copyright infringement and the “whack-a-mole” problem of infringing content reappearing after being taken down.

In its report, the Copyright Office suggested recommendations for Congress to consider in 12 different areas, including eligibility qualifications for the service provider safe harbours and repeat infringer policies.

On the topic of repeat infringer policies, the office noted that, as currently interpreted, OSPs may be found in compliance with the safe harbour if they adopt and reasonably implement an unwritten policy, where the specifics aren’t shared with the OSP’s users.

“In the office’s view, such unwritten and uncommunicated policies are unlikely to have the deterrent effect on infringing conduct that Congress initially intended,” said the report.

It added: “Given the broad scope of the safe harbours, having a clear, documented, and publicly available repeat infringer policy seems like the appropriate minimum requirement in order to comply with the statute, as well as to act as a deterrent to infringement.”

The office said that while it is recommending these options for Congress to fine-tune section 512’s current operation.

The report concluded: “Should Congress choose to continue to support the balance it devised the DMCA and move forward on the issues identified in this report, then the office harbours some optimism that a path toward rebuilding the section 512 balance could be found.”

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