Key Takeaways:
- A copyright infringement takedown notice is a powerful tool for protecting your intellectual property online, enabling copyright owners to request the removal of unauthorised content quickly and legally.
- It is essential to ensure that your takedown notice is accurate and complies with legal requirements, including proper identification of the infringing content and a statement of good faith belief.
- Both the copyright owner and the alleged infringer have rights in the takedown process. The infringer can file a Counter Notice if they believe the content was removed in error, leading to a potential legal resolution if the issue is not amicably resolved.
In the digital age, where content is created and shared at an unprecedented rate, protecting intellectual property rights has become a paramount concern for creators and copyright owners.
The copyright infringement takedown notice is one of the best methods for stopping illegal online use of copyrighted content.
The details of takedown notices, their legal foundation, how to file one, and their importance as a safeguard for copyright owners’ rights will all be covered in this article.
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What Constitutes Copyright Infringement?
Copyright is a legal protection granted to the creators of original works, including literary, musical, artistic, and certain other intellectual works. This protection gives the copyright holder exclusive rights to use, distribute, and reproduce their work.
Copyright infringement occurs when someone uses, duplicates, disseminates, or exhibits a work protected by a copyright without the owner’s consent.
Content can be used illegally in a variety of ways, such as by copying it for use on websites, posting it on social media, or incorporating it without the required permissions into products sold for profit.
Copyright violation not only undermines the value of the original work but also deprives the creator of potential revenue and recognition.
As the internet continues to grow, the challenge of protecting copyrighted material online has intensified, making the use of legal tools like takedown notices more critical than ever.
What is Copyright Infringement Takedown Notice?
A copyright infringement takedown notice is a formal request sent by a copyright owner or their authorised agent to a website, online platform, or service provider, demanding the removal or disabling of access to content that allegedly infringes on the copyright owner’s intellectual property rights.
This notice is typically issued under the provisions of copyright laws, such as the Digital Millennium Copyright Act (DMCA) in the United States, which provides a legal framework for protecting copyrighted works online.
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The Importance of Takedown Notices in Protecting Copyright Owners’ Rights
Takedown notices play a critical role in protecting the rights of copyright owners in the digital environment. Here are several reasons why they are essential:
Swift Removal of Infringing Content
Takedown requests provide a mechanism for copyright owners to quickly and efficiently remove infringing content from the internet. This swift action helps prevent further unauthorised distribution and minimises the potential damage to the copyright owner’s work.
Deterrence of Future Infringements
The use of takedown notices can act as a deterrent to would-be infringers. Knowing that copyright owners are actively monitoring and enforcing their rights can discourage individuals and businesses from using copyrighted material without permission.
Preservation of Revenue and Market Share
By removing unauthorised copies of their work, copyright owners can better control the distribution of their content and protect their revenue streams. This is particularly important in industries such as music, film, publishing, and software, where unauthorised distribution can significantly impact sales and market share.
Protection of Brand and Reputation
Copyright infringement can harm a brand’s reputation, especially if the infringing content is of poor quality or associated with unauthorised products.
Takedown notices help content owners maintain the integrity of their brand by ensuring that only authorised and high-quality versions of their work are available to the public.
Legal Recourse
Takedown notices are an essential first step in pursuing legal action against infringers. By documenting instances of infringement and taking action through takedown notices, copyright owners can build a case for further legal action if necessary.
Legal Framework Governing Takedown Notices
Copyright infringement, as defined by Section 51 of the Copyright Act, 1957, is the illegal use of the owner’s exclusive rights without the owner’s or registrar’s consent.
As long as the copyright owner hasn’t specifically forbade such actions, temporary or incidental storage of a work or performance to enable electronic linkages, access, or integration is deemed fair use, according to Section 52(1)(c) of the Indian Copyright Act, 1957.
If the individual responsible for storing the copy is found liable, the copyright owner can issue a written complaint, claiming that such storage constitutes infringement.
During this period, the responsible party is prohibited from advertising access to the infringing content for 21 days or until a court order is received.
If no court order is obtained within the 21-day period, the individual is allowed to resume providing access to the content.
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Information Technology Rules, 2021 on Takedown Services
In February, the government introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, which set forth crucial guidelines for intermediaries to follow.
These rules require intermediaries to exercise due diligence by publishing their rules, regulations, privacy policies, or user agreements.
Users must be informed not to host, display, upload, modify, publish, or transmit any information that infringes on any patent, trademark, copyright, or other intellectual property rights.
The rules also outline the procedure intermediaries must follow when complying with takedown notices.
When an intermediary receives a court order or notification from the appropriate government authority or its agency regarding infringing content, it must remove, store, or refrain from publishing any unlawful information prohibited by law.
Regarding such orders, the intermediary has thirty-six hours to take action. Intermediaries must also designate a Grievance Officer to create a grievance redressal system. This officer is responsible for receiving complaints related to rule violations, acknowledging them within 24 hours, and resolving them within 15 days of receipt.
Significant social media intermediaries are subject to additional due diligence requirements under the laws, which also require the Chief Compliance Officer to be appointed. This officer is responsible for ensuring compliance with the IT Act and its rules and may be held liable in proceedings where due diligence is not maintained as prescribed.
Regarding copyright protection and takedown services, the new IT rules provide significant support to content creators. In cases of infringement, content creators can directly file a complaint with the Grievance Officer, who is required to address it promptly.
Previously, intermediaries were only secondarily liable to copyright holders, with liability arising only in cases of non-compliance with court orders.
How to File a Takedown Notice in India?
The Copyright Rules, 2013 outline the procedure and requirements for sending a copyright takedown notice. According to Rule 75, a copyright infringement notice must be a written complaint that includes the following details:
Detailed Description of the Work: The notice must provide a comprehensive and specific description of the copyrighted work.
Since there is a vast amount of similar content available online, the description should be clear and precise to enable platforms like YouTube or Facebook to easily identify and remove the infringing content.
Proof of Ownership or License: The complainant must include details that establish their ownership or exclusive license of the copyrighted work. If the complainant is a licensee, a copy of the license agreement must be attached to the copyright takedown notice.
Evidence of Infringement: The notice should contain details proving that the material posted online is not covered under Section 52 of the Copyright Act, 1957, and does not qualify as fair use. It should clearly state how the material infringes the copyright owner’s rights.
Location of the Infringing Material: The notice must include the location of the infringing content, such as a URL or link. This helps the website host quickly locate and remove the content.
Details of the Infringer: The notice should include information about the person responsible for uploading the copyrighted work onto the website.
Takedown Timeline and Legal Action: The notice should instruct the recipient that if the infringing content is not removed within 36 hours of receiving the notice, legal action will be taken.
The recipient has 21 days to comply, during which the complainant must obtain a court order to support the takedown process.
This court order restrains the website host or ISP from allowing access to the infringing material and must be provided to them within the specified period. Failure to obtain and provide the court order within 21 days may prevent the owner from filing an infringement suit later.
Landmark Cases on Takedown Services for Copyright Protection
Here are a few well-known instances of takedown services for copyright protection:
Shreya Singhal vs Union of India [AIR 2015 SC 1523]
The Hon’ble Supreme Court considered whether Section 79 of the IT Act is constitutionally valid in light of Article 19 of the Constitution in this particular case. The court decided that intermediaries are not liable as long as the section’s requirements are met.
The court interpreted Section 79(3)(b) and Rule 3 to mean that the knowledge of unlawful content referred to in this section must be acquired solely through a court order or notification by a government-established agency.
Swami Ramdev v. Facebook, Inc. & Ors (2019)
The Delhi High Court ruled in this case that defendants Facebook, Google, YouTube, and Twitter had to take down a list of URLs from their sites that they claimed were disparaging to the plaintiffs.
Yoga guru Swami Ramdev started the legal case because he said that content and videos disparaging the book “Godman to Tycoon – The Untold Story of Baba Ramdev” were uploaded on these platforms.
The Information Technology Rules, 2011 and the Information Technology Act, 2000 provide a legal framework for intermediary liability. The court ordered the intermediaries to block and remove any illegal content, including videos, that can be accessed from IP addresses in India.
For content posted outside India, the intermediaries were instructed to use geo-blocking tools to disable access to the content for viewers within India.
Christian Louboutin SAS v. Nakul Bajaj (2018)
In this case, the plaintiff, Christian Louboutin, filed a lawsuit against Darveys.com, a website specialising in the sale of imported luxury goods, alleging that the site was selling counterfeit and defective products that infringed on the plaintiff’s trademark.
The Delhi High Court, recognising the website as an intermediary actively participating in the transactions, held it liable for trademark infringement. The court ruled that Darveys.com could not seek protection under the IT Act’s safe harbour provisions, making it accountable for the infringement.
What’s Next?
A copyright infringement takedown notice is a vital tool for protecting digital material from unauthorised use. It allows copyright owners to request the removal of infringing content from internet service providers, who may face liability if they have actual knowledge of the infringement and fail to act.
By providing clear details, such as the email address and specific location of the infringing content, copyright owners can ensure that their rights are upheld. However, preventing infringement with knowledge of the potential threats is equally important.
Bytescare Digital Protection offers a comprehensive suite of tools to safeguard your intellectual property. From watermarking and encryption to access control and usage tracking, Bytescare empowers you to control how your work is used and distributed.
Don’t wait for a violation notice to take action. Protect your copyright from the start. Book a demo with Bytescare today and see how we can help you secure your creative future.
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FAQs
What is DMCA takedown notice?
After the alleged infringing content is removed, the infringing party has the right to submit a Counter Notice, asserting under penalty of perjury that the DMCA Takedown Notice was made in error.
Upon receiving a valid DMCA Counter Notice, the Online Service Provider (OSP) or Internet Service Provider (ISP) must wait 10-14 days before restoring access to the disputed content.
During this period, the original claimant who filed the DMCA Takedown Notice must seek a court order against the infringing site owner and the OSP/ISP if they wish to prevent the content from being reinstated.
Who can file takedown requests?
Takedown requests can be filed by the copyright owner, their authorised agent, or legal representatives acting on behalf of the copyright owner. The filer must have a legitimate claim to the copyrighted material in question and must assert that the infringing content is being used without authorisation.
How do I file a copyright infringement takedown notice?
To file a takedown notice, you must submit a written request to the OSP or ISP, including specific details about the copyrighted work, the infringing content, its location (e.g., URLs), a statement of good faith belief that the use is unauthorised, and your contact information. The notice must also be signed, either physically or electronically.
What happens after a takedown notice is submitted?
Once a takedown notice is submitted, the OSP or ISP typically reviews the claim and, if valid, removes or disables access to the infringing content.
The infringing party is notified and given the opportunity to file a Counter Notice if they believe the takedown was in error. The OSP/ISP may wait 10-14 days before restoring the content if a Counter Notice is filed.
Can I be sued for filing a copyright infringement takedown notice?
Yes, if you file a takedown notice with false claims or without a valid copyright, you could potentially face legal consequences, including being sued for damages by the alleged infringer. It’s important to ensure that your claim is accurate and made in good faith to avoid liability.
What is a counter notice, and how do I file one?
A Counter Notice is a response to a copyright infringement takedown notice, asserting that the takedown was made in error.
To file a counter notice, you must include identification of the removed content, a statement under penalty of perjury that you believe the content was wrongly taken down, your contact information, and consent to the jurisdiction of the relevant court.
The OSP/ISP will typically wait 10-14 days before restoring the content unless the original claimant files a lawsuit.
What is the role of the OSP/ISP in the takedown notice process?
The OSP/ISP acts as an intermediary in the takedown notice process. Upon receiving a valid takedown notice, they are required to remove or disable access to the infringing content to avoid liability.
They must also notify the infringing party, provide them with the option to file a Counter Notice, and follow the legal timelines for restoring content if no lawsuit is filed.
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