31 March 2016

Submitted by John Mottram

Organization: PRS

U.S. Copyright Office Section 512 Study

PRS Comment

The Performing Right Society Limited (PRS) is a collective management organisation

(CMO) in the United Kingdom. PRS manages and administers the performing right in
musical works for its 115,000 members throughout the world, either directly or through
representative agreements with other CMOs. In the US, PRS has representative
agreements with ASCAP, BMI and SESAC. PRS is one of the largest CMOs in the world
distributing over 400 million (or US$700m) to its members in 2014. Royalties collected
for exploitation in the US represent our significant proportion of those distributions,
totalling US$48.6m in 2015.
We welcome the opportunity to comment on section 512 of the DMCA and its impact on
PRS members and rights holders around the world.

General Effectiveness of Safe Harbours

4. How have section 512s limitations on liability for online service providers
impacted the protection and value of copyrighted works, including licensing
markets for such works?
As the notice of inquiry states, the nature and scale of the internet has changed beyond
all recognition since 1998. One fundamental change has been the emergence of
platforms which allow online users to upload content and subsequently build lucrative
businesses from providing access to that content. A considerable amount of the content
uploaded and shared on these platforms are copyright works, and they are being
exploited without the consent of the copyright owners.
Importantly the platforms which provide access to user uploaded content are
indistinguishable from licensed content providers, as they allow users to find the content
they want, when they want it, and discover new works through recommendations and
playlists. As a result both the licensed content providers and the platforms hosting user
uploaded content compete for the same audiences and advertising revenues, yet this
competition, as a result of the section 512, is on vastly different terms.
The primary impacts of the limitations in section 512 on rights holders is twofold. Firstly,
creators have been robbed of the right to consent to the use of their works, and as a
result receive little or no remuneration for the exploitation of those works. Secondly,
content services, who are licensed and pay rights holders, are forced to directly compete
with free-at-the point of access user upload platforms, who do not, which has the effect
of driving down the overall value of content online.
The limitations on copyright liability, specifically section 512 (c) of the DMCA, are cited
by platforms which host and make available user uploaded content in the US as a means
1

not to pay for the works they exploit. The DMCA was established nearly 20 years ago,
when the digital market was still in its infancy. Therefore, the legislators could not have
predicted a market were host providers could include both those who passively store
content and those which both store and actively make available that content to the
public.
Therefore, we believe it is necessary that section 512 be reviewed to ensure it does not
continue to be a barrier to the efficient and fair operation of the online content market.
5. Do the section 512 safe harbours strike the correct balance between
copyright owners and online service providers?
The section 512 safe harbours have removed the ability of right holders to consent to the
use of their works online. The result of which has been a negative impact on the value
of copyright, by allowing the value derived from online works to transfer from the
creators to the online platforms.
Notice-and-Takedown Process
6. How effective is section 512s notice-and-takedown process for addressing
online infringement?
The notice-and-takedown process was intended to be the exception rather than the rule,
unfortunately today the opposite is true. Right holders must invest heavily in order to
monitor infringing works and to notify platforms. For sectors with large repertories, such
as the over 14 million musical works, it is neither possible nor cost effective to fully
enforce our rights through notice-and-takedown. Therefore, it is clear that notice-andtakedown is not, nor can it ever be, an effective means of addressing online
infringement.
7. How efficient or burdensome is section 512s notice-and-takedown process
for addressing online infringement? Is it a workable solution over the long run?
The process is extremely burdensome and costly, with the cost of identifying works
being entirely bourn by rights holders. Notice-and-takedown would be an acceptable
solution if it were only occasionally necessary, but it has become the rule, instead of
being the exception to the rule.
10. Does the notice-and-takedown process sufficiently address the
reappearance of infringing material previously removed by a service provider in
response to a notice? If not, what should be done to address this concern?
Rights holders are regularly required to issue multiple takedown notice for the same
infringing works on the same sites. To illustrate this point, over a four-month period in
2013, PRS for Music sent 849 notices to one service, Rapidgator.net, in relation to a
single work. This further reinforces the point that notice-and-takedown is not an
effective mechanisms through which to enforce rights, specifically on sites who are
actively incentivised to have the maximum amount of content available and disincentivised to monitor whether that content is copyright works.
11. Are there technologies or processes that would improve the efficiency
and/or effectiveness of the notice-and-takedown process?
Content-identification software are increasingly deployed by user upload platforms and
can play an important role in allowing platforms to monitor the content uploaded by
users. However, for the reasons set out above user upload platforms are actively disincentivised to deploy such software as it provides them with actual knowledge of the

works on their sites and thus makes them liable. Therefore, while content identification
systems are of only limited benefit in the operation of notice-and-takedown they could
be an effective tool through which right holders may license user upload platforms, by
allowing for the identification of works at upload.

Other Issues
29. Please provide any statistical or economic reports or studies that
demonstrate the effectiveness, ineffectiveness, and/or impact of section 512s
safe harbors.
For an economic analysis of the impact of the safe harbour, please see the paper Is
copyright law fit for purpose in the Internet era? by Robert Ashcroft and George Barker:
https://ec.europa.eu/futurium/en/system/files/ged/is_copyright_law_fit_for_purpose_in
_the_internet_era.pdf
30. Please identify and describe any pertinent issues not referenced above that
the Copyright Office should consider in conducting its study.
European law has equivalent legislation in Directive 2000/31/EC. These provisions are
currently under review by the European Commission. In light of this and the borderless
nature of the internet, it may be opportune for the Copyright Office and the European
Commission to address these issues together.

If you have any questions on any of the issues in this paper, or more widely about PRS,
please contact us on policy@prsformusic.com