IFPI & MPA Oppose ‘New Safe Harbors’ in Digital Services Act

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The European Council's adoption this week of the General Approach on the Digital Services Act has been met with disappointment by a coalition of rightsholders including IFPI and the MPA. Their concerns include the introduction of a "safe harbor" for search engines and the apparent detachment of due diligence obligations from liability for infringing content.

EU CopyrightIn an effort to keep up with a rapidly changing online environment, the European Commission has adopted various legislative changes to tackle piracy.

Notable examples include the Copyright Directive passed in 2019 and the Digital Services Act, which was unveiled in 2020.

In common with all complex pieces of legislation, the final text will probably fall short in meeting everyone’s demands but at the moment, interested parties are doing whatever they can to ensure that their interests are taken care of. Rapid copyright takedowns, trusted flaggers, and other types of enforcement are all hot topics.

A compromise proposal was adopted in early October by the European Parliament’s Committee on Legal Affairs (JURI) and this week saw the adoption by the European Council of the General Approach on the Digital Services Act.

Powerful Coalition Expresses “Serious Concerns”

In a statement published Thursday, a broad and powerful coalition featuring the likes of MPA, IFPI, music industry giant ICMP and sports group SROC (Premier League, FIFA, LaLiga, MotoGP and more), voiced serious concerns over the Council’s adoption.

“We represent a broad coalition of organizations in the creative and cultural sectors in Europe, including music, audio-visual, literary and visual authors; performers; book, music, scientific, technical, and medical publishers; recorded music, film and TV producers; sports right owners; distributors and photo agencies,” the coalition begins.

“We are very concerned that the General Approach on the Digital Services Act (DSA) adopted today by the Council fails to deliver on the DSA’s original objective of establishing more accountability for online platforms and creating a safer and more trustworthy online environment.”

According to the rightsholder groups, some of the proposed modifications to the Act run counter to these goals by weakening the current liability regime and negatively impacting “standards and good practices” for addressing illegal content, including that which infringes copyright.

No New Safe Harbors For Search Engines

For many years groups like the MPA and IFPI have sought to decrease the so-called “safe harbor” protections available to various online intermediaries and service providers. In an ideal world the groups would like these to be as restrictive as possible but modifications in the proposals have the potential to expand them, they argue.

Article 4 of the DSA was previously only concerned with ‘caching’ services and stated that such providers “shall not be liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service upon their request.”

However, modifications now mean that ‘online search engines’ are now in the mix, with proposals that they shall not be held liable on the same basis “for the search results locating the information related to the content requested by the recipient of the service.”

No good, rightsholders say.

“The introduction of a ‘safe harbor’ for search engines alongside ‘caching’ services in Article 4 of the DSA would go against the EU’s general political commitment not to modify or broaden the liability limitations under the e-Commerce Directive,” they write.

“The goal of increasing the accountability of search engines should be achieved through the introduction of effective due diligence obligations, not by making them beneficiaries of a broad and unjustified ‘safe harbor’. This new ‘safe harbor’ would fall below several existing national measures and obligations and would remove all incentives for search engines to stop enabling access to illegal or harmful content – and make money on the back of such activity.”

Due Diligence Should Be a Safe Harbor Factor

The issue of due diligence is of particular interest to rightsholders. They have been pressing hard for a stringent ‘Know Your Business Customer’ regime that would compel online services such as hosting companies, domain registrars, and advertisers, to perform checks to ensure that their customers are who they say they are. The idea is that this would provide opportunities to track down infringers more easily.

Rightsholders also believe that compliance with these requirements should be a factor when deciding if a platform is indeed entitled to safe harbor protections. As a result, a section of the DSA is of concern to them.

“The due diligence obligations are compatible with and independent from the question of liability of intermediaries which need therefore to be assessed separately,” the proposal reads.

“As such, intermediary services could be exempt from liability for third party content or activities regardless of whether they have been considered to comply with their due diligence obligations.”

No good, rightsholders say. They believe that such a clause would remove the incentive to comply with due diligence obligations.

“Proposals establishing that intermediary services can continue to benefit from the ‘safe harbor’ privileges even when they do not comply with their due diligence obligations would equally remove all real and impactful incentives for compliance with their obligations under the DSA. Diligent behavior is and should continue to be a factor to assess the eligibility for ‘safe harbors’,” their statement reads.

“The lack of ambition in setting truly effective due diligence obligations fails to reflect the broad scope of illegal activity that takes place online,” they continue.

“Extending the scope of application of the obligations to ensure the traceability of business users (‘Know Your Business Customer’) is necessary to tackle the serious problem of illegal operators acting on a commercial scale and hiding behind false identities.”

In closing, the rightsholders also call for more effective tools to deal with repeat infringers and systematic illegal activities to ensure that EU consumers have as little exposure to illegal content as possible.

“The EU has a unique opportunity to create a secure, well-functioning online environment to improve consumer trust and enable our creative sector to grow in the EU Digital Single Market. It is therefore crucial for Member States, together with other co-legislators, to reassess the above-mentioned proposals,” they conclude.

The statement can be found here (pdf)

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