'Modernise' safe harbour laws for the tech oligarch era – IP czar

Never meant as a get-out-of-jail-free card for tech giants, says report

The Prime Minister’s outgoing IP advisor has said the shift in the balance of power to now-dominant tech multinationals means “Safe Harbour” provisions devised in the 1990s should be modernised and made fit for purpose.

Safe Harbour is a blanket term for limitations of liabilities for internet operators against obscenity, criminal behaviour and copyright infringement. Without the limitations, the internet economy would have struggled to take off: new sites and services would have been too risky to invest in and too expensive to operate.

So, in legislation such as Europe’s E-Commerce directive, which was loosely modelled on the US Digital Millennium Copyright Act 1998, liabilities for certain actions were capped.

Today, however, a handful of tech oligarchs dictate the terms of trade; huge companies use safe harbour as a competitive weapon to force deals they couldn’t otherwise dream of making. Last year Google clobbered tiny independent music companies with a contract which obliged them to indemnify Google against unauthorised uploads of their own music. As Paul Resnikoff, editor of Digital Music News, explained, the political economy of “whack-a-mole” favours the distributor at the expense of the supplier:

It’s virtually impossible to actually remove your content from YouTube, especially if you have a smaller (i.e. indie) budget... The reason is that YouTube plays by the DMCA, which of course forces the content owner to claim and demand a removal. Once you cannot upload your official versions, then you are dealing with endless crappy, low quality lyrics videos that are often monetised by someone else if not policed properly. And usage patterns show that everyone goes to those videos if the official video isn’t uploaded fast and first.

In other words, Google was saying: "Whether you sign or not, we'll get to use your music."

Mike Weatherley MP, in his fourth and final report as the government's IP adviser, said a modernised E-Commerce Directive should distinguish between bona fide ISPs and pirate operators who make money from copyright material without paying for it.

In addition, the falling cost of technology means that monitoring a service in good faith is no longer cripplingly expensive, as it was twenty years ago.

British composers and songwriters society BASCA said ambiguities in the original provisions had led to “scope creep”.

Groups representing creators and creative industries argue that the E-Commerce Directive already allows (in Recital 48) member states to “apply duties of care” to detect and block certain types of illegal activity.

Weatherley agrees that there should be “a ‘duty of care’ to be laid down as part of any forthcoming revision of the EU copyright legal framework”.

Health and Safety inspectors for the net?

More controversially, Weatherley suggests that a third-party body “that can be absolutely confidential, trusted and fully auditable” should be able to inspect service providers for classes of behaviour.

“If you don’t know if a crime has been committed, you cannot be expected to report it or take any other action. But, do companies have a responsibility to proactively check?” he writes.

“Let me take the example of someone who rents a garage out to a third party," he continues. "The landlord cannot be held liable for what goes on in that garage, no matter what the activity is... It is not the landlord breaking the law and it is hidden from his view. But if the landlord is told that the garage is being used for illegal activity, and that this information is from a totally reliable source, then does the landlord have a moral obligation to report it? I would argue that it is the duty of every citizen or company to do what they can to stop illegal activity and therefore the answer is, yes, the landlord should report the activity.”

“Now add in an extra dimension that if it is not reported, then other third parties who use and trust that company’s service will be directly impacted by the illegal activity, then there is an even more compelling case, morally,” Weatherley explains.

Getting the balance right isn’t easy. However, Google and other Silicon Valley giants successfully fought attempts to combat rogue foreign sites by painting the legislation as an assault on civil rights. “Safe harbour is a misleading term,” one US legal expert explained to us. “The limitations on liabilities were designed to protect honest operators – they were never intended as a shield for criminal behaviour, as they are today.”

Weatherley is standing down as MP for Hove at the General Election. You can see the report here. ®


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