This article has been written by Teena Sharma, pursuing the Certificate Course in Intellectual Property Law and Prosecution from LawSikho.
Copyright infringement happens when a copyrighted work is distributed, reproduced, publicly displayed, performed, involved in a derivative work or otherwise used without permission from the owner of the copyrighted work. Such infringement can cause loss of revenue and a damaged reputation to the owner of the copyrighted work. Sometimes it becomes a challenge to protect valuable intellectual property. DMCA takedowns give the owner of the copyrighted work, another tool to protect its assets on the internet.
Digital Millennium Copyright Act
The Digital Millennium Copyright Act (DMCA) came into being on October 28, 1998 with the objective to implement two World Intellectual Property Organization (WIPO) treaties i.e., (1) WIPO Performances and Phonograms Treaty and (2) the WIPO Copyright Treaty. The object of DMCA is to protect the rights of both copyright owners and consumers by regulating digital material.
DMCA plays an important role protecting a brand’s reputation keeping safe copyrights and trademarks associated with that brand.
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About DMCA Notice
A DMCA takedown notice is a notice under Digital Millennium Copyright Act, to the organization, search engine, ISP or web host notifying them that the material they are hosting, linking or publishing material that infringes a copyright. Upon receiving such notice, the website or company should immediately remove/take down the alleged material as claimed to be copyrighted. In case the website or company, fail to remove the material in question or as alleged, then the ISP can forcibly take down the content.
Scenarios in which it can be used
Before sending a DMCA takedown notice the aggrieved person sending such notice should conduct a thorough investigation of the infringing activity to ensure that what and how many rights (copyright) are being infringed and also see that whether any limitation or exception, is applicable. The DMCA takedown process should only be used by the Copyright Owner for the specific purpose such as – removing the infringing material from the website/URL. It should not be used as a tool for removing criticisms of the copyrighted work or copyright owner or for removing infringements in relation to trademark. A DMCA takedown notice can be sent for infringement of following in relation to the following types of copyrighted material:
- Something in the form of written text like articles, books, blogs, poetry, etc.
- Images/Pictures which an owner of the copyright took and uploaded on his website or any social media sites like Facebook, Twitter, etc.
- visuals like paintings, artwork, images, photos, etc.
- Musical works, audio files, songs, lyrics, etc.
- Video recorded.
- Software like Digital software.
Copyright holders can use a DMCA notice and takedown process as a tool for taking off any copyright infringing user-uploaded material of any URL/websites and other internet or social media sites. It starts or sets into motion with the copyright owner himself or through his agent sends a notice (a takedown notice) requesting the service provider to remove the infringing material off the website/ URL.
Here the service provider may be a search engine (e.g., Google, Yahoo, etc), an internet service provider, website operator, a web host (e.g., Go Daddy) or another type of online site-operator not specifically defined here. A service provider may refuse to take down the material if the elements specified by the copyright law are missing. Sometimes, the service provider may refuse to take down the material, even if a takedown notice is as per the legal requirements. In the event of service provider failing to take down the infringing material off the website, then he may incur potential secondary liability like he is assisting the copyright infringement.
The registration of work of the Copyright owner with the U.S. Copyright Office is not compulsory for initiation of DMCA takedown process, i.e., the copyright owner can still initiate DMCA proceeding. DMCA takedown process should not be used for claims other than the infringement of copyright. Nowadays, service providers do offer online tools which are easy-to-use and can be used to submit online claims through an online DMCA takedown form directly to the provider.
How does it work
The following steps are involved in the DMCA process:
- DMCA process starts with a takedown notice being sent to the service provider,
- Upon receiving such notice, the service provider sends a copy of the notice to the infringer, subscriber, user, or another person responsible for such infringing activity.
- In case, in the opinion of the alleged infringer the activity is not infringing, a counter-notice is the resort available for him. He will send a counter-notice to the service provider denying the allegation made by the copyright owner with appropriate reasons.
- When the service provider receives a counter notice, he is duty-bound to forward the said counter-notice to the owner of the copyright or the one who sent the takedown notice in the first place.
- Thereafter, the service provider has to wait for 10-14 days as within the said time period, the copyright owner may initiate legal proceedings in the form of suit against the alleged infringer of copyright. Therefore, till the pendency of such proceedings, content shall remain off the website, but the service provider must allow access to or re-activate the alleged infringing material/activity if the owner of the copyright does not file such suit within such period.
Under Section 512(c) of the Digital Millennium Copyright Act ( or ”DMCA” in short)
United States of America
I, Ms Divya (Surname), D/o Mr (Father’s Name), aged about (yrs), resident of (address), do hereby serve upon you with the following Notice:
1. That I am the exclusive Copyright holder for artwork [title of copyrighted artwork];
2. That it is my usual practice to publish my original artwork/design on my Instagram page-Design. Daily, every fortnightly and my clients interested in buying a particular design/prints directly message me over my mobile number. Upon receipt of payment, I send my prints to my clients.
3. That these design/prints exclusively belong to me as these are registered with the Registrar of Copyrights, New Delhi, India under The Copyright Act and my annual Turnover from sale of my design/prints ranges from 20-50 crores.
4. That it has come to my notice that my exclusive rights are being infringed and violated by illustrations/material available upon your site- Design. Every day at the following link/URL(s): [link of infringing material] for sale published on 02.12.2020;
5. That the above-mentioned illustrations/material published on design everyday on 02.12.2020 are same in colour, form, shapes and layouts as designed by me and published on my Instagram page-Design daily on 28.11.2020 which are my original artwork;
6. That such infringement of my rights has caused me to suffer financial loss;
7. That you are hereby asked to notify about this notice the infringer and further inform him that he is duty-bound to remove immediately the infringing material and also to stop any such further uploading or posting to your server in the future material which is infringing.
8. That I have a good faith belief that neither I have not authorised the use of this material in such a manner, nor it is authorised by my agent or the law in force;
9. That under penalty of perjury in a United States court of law, I hereby state that the statements made or information, as provided by me in this notice, is accurate and true to my knowledge in relation to the material in question;
8. That the following is my contact information (Home address): [Office address) (email address and telephone number).
Therefore, I hereby ask you to disable access or remove the said infringing material which appears on your website immediately.
A copy of this Notice has been preserved in my office for record and future course of action.
Counter-notice is the response the alleged infringer submits when he is presented with a valid DMCA takedown notice. He has to submit it to the service provider after the DMCA takedown notice has been received and after the claimed infringing content has been removed.
A service provider must wait for 10-14 days, after a counter-notice has been received before they can reactivate the claimed infringing content. The Following are the circumstances where filing a counter-notice would be advised are:
- The copyright of the alleged infringing material has expired in the United States of America or it is not copyrighted.
- If the complainant fails to provide copyright registration information or other such evidence that the alleged infringing material is in fact copyrighted.
- If the complainant does not hold the copyright of the alleged material or he is not an authorised representative of the copyright holder, and so lacks a reason to conclude that the said use of the said alleged material violates any of the copyright owner’s rights.
- The use of alleged material is legally protected because it is within the purview of “fair use” provision of the copyright regulations.
- The complaint fails to follow the prescribed format for notice of an alleged copyright violation as per the Digital Millennium Copyright Act.
Specifically, the complainant has failed to:
- Provide a complaint in written form.
- The complainant fails to include an electronic or physical signature in the notice.
- If the complainant fails to identify the specific work which is a subject to copyright and therefore, claimed to be infringed, or, if there are more than one such copyrighted work/multiple copyrighted works covered by a single complaint, the complainant fails to provide a list of such copyrighted works.
- The complainant fails to provide the Link/URLs of the specific material on the web site that are alleged to be infringing.
- The complainant fails to Provide sufficient information about him like his identify, including name, surname, his emailing address, mobile/telephone number, and postal address.
- The complainant fails to include a statement in the notice that the he has a good faith belief that use of the disputed material is not authorized by him, his agent, or the law.
- The complainant fails to state in the notice that the information in the notice is accurate, and under penalty of perjury, or that the complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
To avoid violating copyright laws, one should not publish copyright-protected materials without obtaining permission from the copyright holder or their representative and adhere to fair use policy.
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