Definition
The use of material that is protected by copyright law (such as text, image, or video) in a way that violates the rights of the copyright holder, without the rightsholder’s permission and without an applicable copyright exception or limitation.
Background
This can include copying text, images, music, or videos and sharing them on social media without the right to do so. Moderators might see reports regarding posts that include copyrighted material that seems unlikely to be licensed for use on the platform, such as popular music tracks, TV show clips, or high-quality professional photographs. However, it’s important to distinguish between infringement and fair use, which can include criticism, review, or academic discussion. Misinterpretation may arise when users post their own material or use content under fair use provisions.
Remember, while enforcing these rules, it’s crucial to provide a clear process for your users to contest claims of infringement, especially in cases where they believe their use falls under fair use or if they actually hold the rights to the content. This ensures fairness and respects everyone’s legal rights.
Many countries and regions offer service providers safe harbour from liability for hosting infringing content, but only if they have a process to receive copyright infringement notices. Lumen offers a Lumen Submitter Widget, a tool that allows users to submit complaints and requests for removal of online materials on your platform web site. See https://lumendatabase.org/blog_entries/lumen-announces-new-submission-tool for more details on this free tool.
At a minimum, we recommend adding a dedicated email address and a notice on your “About” page or similar directing takedown requests to submit notices to that email address.
Copyright Law
Copyright law is different in each country. Wikipedia is a good place to start basic research, see Copyright law by country, and List of countries’ copyright lengths.
Canada
European Union
The EU’s Digital Service Act provides safe harbour, but service providers must have a takedown process in place. This process must be easy to access, user-friendly, and allow for the submission of notices by electronic means. The notices themselves must be sufficiently precise and adequately substantiated so that a “diligent economic operator” can recognise the illegality of the content in question.
To be valid, the notice must include the following elements:
- An explanation from the reporter of the reasons why they consider the information to be illegal content
- A clear indication of the electronic location of that information, for example, in the form of URLs
- The name and e-mail address of the reporter
- A statement from the reporter confirming their good faith belief that the information and allegations in their notice are accurate and complete
The DSA also imposes an obligation on the service provider to confirm receipt of the notice, and to follow up with the reporter without undue delay once a decision in respect of the notice has been reached.
United States
The Digital Millennium Copyright Act governs online copyright issues. Service providers in the United Sates may receive a DMCA takedown notice. To be actionable, a DMCA takedown must contain:
- Physical or electronic signature of the copyright holder or their authorised agent
- Identification of the work being infringed. This does not need to be proof of copyright registration, but could be the title of the work, or URLs to where the work is legally displayed
- The location of the material claimed to be infringing (this could be multiple URLs)
- Contact information
- A statement of good faith belief that the use of the material is not authorised by the copyright owner
- A statement that everything is accurate, and under penalty of perjury, that the sender is authorised to act on behalf of the copyright owner.
Sample Notice of Copyright Infringement (US Copyright Office)
A Counter-Notice can be filed very easily for several reasons. No copyright to infringe, maybe the copyright has expired, or the content consists of facts or ideas that cannot be copyrighted; you have a license or permission to use or display the content; fair use.
Sample Counter-Notice (US Copyright Office)
Larger services in the USA who wish to retain safe harbour will need to register a DMCA Designated Agent with the Copyright Office ($6.00 USD per year at time of writing) – however this will require a street address to receive takedown notices. If you wish to register but use a PO Box, use the DMCA Designated Agent Post Office Box Waiver Request to email the Copyright Office and describe that you are a home-based content moderator who fears revenge or retribution for your actions and need to use a PO Box to remove your home address from public view:
“To obtain a waiver, the service provider must make a written request submitted either by email, to poboxwaiver@copyright.gov, or by signed letter, addressed to the “U.S. Copyright Office, Office of the General Counsel” and sent to the address for time-sensitive requests set forth in 37 C.F.R. 201.1(c)(1), containing the following information: (1) the name of the service provider; (2) the post office box address that the service provider wishes to use; (3) a detailed statement providing the reasons supporting the request, with explanation of the specific threat(s) to an individual’s personal safety or security; and (4) an email address for any responsive correspondence from the Office. There is no fee associated with making this request. If the request is approved, the service provider may display the post office box address on its website and will receive instructions from the Office as to how to complete the Office’s electronic registration process. Please note that this only applies to a service provider’s address. A waiver is not necessary to provide a post office box for a designated agent’s address.”
https://www.copyright.gov/dmca-directory/faq.html
Fair Use and Fair Dealing
Fair use is a legal doctrine primarily in the United States that allows limited use of copyrighted material without needing to obtain permission from the rights holders. This concept applies under specific conditions and is intended to facilitate commentary, criticism, research, teaching, and news reporting, among other educational and transformative uses. The idea behind fair use is to balance the interests of copyright holders with the public’s interest in the broader dissemination of knowledge and information. Factors considered in determining fair use include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relation to the whole, and the effect of the use on the potential market for or value of the copyrighted work.
Fair dealing is a legal term used in the copyright laws of many Commonwealth countries, including the UK, Canada, and Australia. It permits the use of copyrighted material without requiring permission from the copyright holder under specific circumstances. These circumstances typically include uses for research, study, criticism, review, news reporting, and in some jurisdictions, parody and satire. Similar to fair use in the United States, fair dealing aims to balance the rights of copyright owners with the public’s interest in accessing and using works for purposes that contribute to education, scholarship, and cultural discourse. The exact conditions and permissible purposes for fair dealing vary from one country to another.
See Fair Use and Fair Dealing on Wikipedia for a basic understanding of these concepts.
Example Rule
Uploading, sharing, or distributing content without the copyright holder’s consent is not allowed. This rule applies to all types of media, including but not limited to written text, photographs, audio tracks, and video footage.
Discussion
Discuss this label in the Copyright Infringement forum.
