CMU Trends Guide Music Copyright Library Streaming Business Library

CMU Trends In Ten: Safe Harbours

By | Last Updated: May 2020

This is a ten step guide to the copyright safe harbour, the music industry’s grievances with the way it was implemented, efforts to have the principle reformed and the resulting music industry v YouTube battle. 

#01: Safe harbour restricts the copyright liabilities of internet companies
Copyright is all about control – it gives creators and their business partners control over the outputs of their creativity. So in music, that means songs and recordings.

Because of copyright, music-makers can control the reproduction, distribution, rental, adaptation, public performance and communication of their songs and recordings.

If anyone else wants to do any of those things with someone else’s music they must first get permission. The music industry generally charges for that permission and we call this process of selling permission to third parties ‘licensing’.

But what happens if a third party reproduces, distributes, rents, adapts, publicly performs or communicates a copyright work without permission? Well, that’s copyright infringement. The law says that the copyright owner should sue the infringer for damages.

Under most copyright systems, as well as the person who actually infringes a copyright, you might also be able to sue any person or company who facilitates the infringement (usually for contributory or authorising infringement). This is helpful, because the facilitator may be much easier to find than that actual infringer or they might have more money.

However, the copyright safe harbour restricts the copyright liabilities of internet companies that unknowingly facilitate infringement. That facilitation might involve providing networks, servers or other internet tools that third parties then use to infringe, or employing automated systems that index and link to infringing content.

Because of the safe harbour, the copyright owner cannot sue the internet company. Though that safe harbour protection is conditional on said internet company having a system in place via which copyright owners can request for any infringing content stored on or linked to by the company’s platforms to be removed. We call these takedown systems.

The copyright safe harbour was developed in the 1990s when internet access first went mainstream. Many copyright systems include the principle, though the safe harbours most talked about in the music industry are those contained in the Digital Millennium Copyright Act in the US and the E-Commerce Directive in the European Union.