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Frequently Asked Questions
The Digital Millennium Copyright Act was passed by Congress and famously signed into law by former president Bill Clinton in 1998, it now forms part of the U.S. Copyright Act. It incorporates provisions from the World Intellectual Property Organization (WIPO)
The DMCA protects a copyright owner’s exclusive rights online. the Internet makes it easier than ever before to share and transfer photos, music, movies, and other original works with the world. It provides a simple, non-judicial process to stop infringement activities.
A copyright owner has the exclusive right to reproduce and make copies of their work, to prepare derivative works based upon the copyrighted work, to sell, rent, lease, lend and distribute copies of their work and to perform or display their work in public.
It is important to note that the copyrighted work does not need to be registered with the United States Copyright Office to be protected under the DMCA. Its simple creation and existence on a tangible medium are sufficient.
In short, the DMCA notably confirms the illegality of infringing those rights online by sharing and distributing copyrighted materials without authorization as well as makes it criminal to circumvent technology that controls or limits access to copyrighted content and to create or disseminate technology, devices, or services intended to circumvent these access control measures.
Moreover, it sets out the responsibility of intermediaries, namely Internet service providers and online service providers such as web hosting companies and search engines, and gives them the opportunity to be shielded from liability for monetary damages by offering them safe harbor provided that they implement DMCA notice and takedown procedures and fulfill the conditions set out at section 512 of the DMCA.
A DMCA violation is a violation of one of its dispositions, which form an integral part of the U.S. Copyright Act. It can lead to both criminal and civil (monetary) penalties. A violation can be anything from distributing copyrighted content online without permission to illegally downloading torrent content (a movie, music) through a peer-to-peer system.
A DMCA claim is made by the copyright owner or its authorized representative. It is what we commonly refer to as a DMCA takedown notice.
It is sent when the copyright owner believes that their work is being used online illegally, in other words, when it infringes on their copyright. By sending this notice, the copyright owner requests that the infringing content be taken down from the website.
This notice is sent to the website owner or online service provider after careful consideration by the copyright holder or its intellectual property lawyer. Indeed, one must first make sure that the usage is not legal under the doctrine of fair use or that the allegedly infringing website hasn’t purchased a license allowing said use.
To learn more about the elements that need to be included in a DMCA takedown notice to be valid as well as the steps that have to be followed read our article on the subject.
Technically no, the DMCA does not apply outside of the United States as it is federal legislation. In other words, the content needs to be hosted there in order to be subject to the DMCA.
In practice, considering the globality of the online world, international online service providers will usually consider and process takedown notices, especially if you, as the copyright owner, are located in the United States or if the country where the content is hosted is a member of the World Intellectual Property Organization (WIPO) as there are similar laws and generally recognized principles worldwide.
Fair use can be used as a defense against a claim of copyright infringement or DMCA takedown notice. Indeed, under this doctrine, one may use copyrighted content for parody, criticism, news reporting, commenting, teaching, scholarship, or research without obtaining the prior consent of the copyright owner.
These uses are considered “fair” when a few factors are weighted and taken into account, notably the scope of the work used, the effect of the use on the work’s value, the nature of the work, and the purpose of the use. Considering reading our article on this subject to learn about fair use disclaimers.
Be proactive about ensuring that you, or your users, have the authorization to use the copyrighted materials. As an individual, you should make sure that the content that you share is original, that you have purchased the correct license or that you have requested the creator’s authorization.
If you own a website that hosts user-generated content or if you otherwise fall under the definition of an online service provider, you should have a DMCA policy in place as well as a designated agent. And make sure that your users agree to it before they are allowed to share anything on your platform, such as by making it an integral part of your terms and conditions and requiring active consent at the time of account creation.
This policy should set out a procedure that allows you to promptly respond to DMCA takedown notices and benefit from the safe harbor provisions as an online service provider, which could effectively shield you from liability in regards to the content shared by your users.
This depends on who the notice is sent to – you, as the website owner, or the company that hosts your website, the online service provider.
If you receive a notice stating that you are sharing copyrighted content on your website without proper authorization, you should take action right away and take down the materials. You can reach out to the person who sent you the takedown notice to let them know.
If an online service provider receives the notice, the content will likely automatically be blocked or removed in the 24 to 48 hours following receipt, as prompt action is required on their end to limit their liability under the DMCA safe harbor provisions. The user that shared or distributed the materials will be informed by their online service provider that they have been taken down under the DMCA notice-and-takedown process.
If you receive notification from your online service provider to that effect but believe in good faith that it was wrongly taken down and that you were making fair use of that content, you may wish to file a counter-notice to have the content be made available again. Read our article to learn more about counter-notices and how to send them.
You should always address DMCA notices, ignoring them will not make the problem go away. Indeed, you could be faced with a copyright infringement lawsuit if the claim has any basis, which could lead to you having to pay significant damages to the copyright holder.
If you have received notice that you have shared allegedly infringing content, take the content down as soon as possible if your online service provider has not done so already.
In the event that you deem your usage authorized, under the doctrine of fair use or as the holder of a valid license, for example, you may wish to contact the copyright owner to discuss the situation or file a counter-notice, as mentioned above.