How To Send a Takedown Notice
If you’re a copyright owner in the digital age, you should not be surprised to find your content surface on a website without your permission. Given the ease of digital duplication and distribution, it is wise to have it taken down immediately. The question is: Who do you ask? And how?
Under Indian law, there exists a legal obligation to comply with such complaints, or ‘takedown notices’ as they’re called. If an online service provider receives a notice from a copyright holder, it is required to remove or disable access to such material to avoid being held liable itself. In order to ensure that the unauthorised use of your work does not continue (or spread) you might want to consider sending a notice to the person facilitating such unauthorised use.
A takedown notice must be sent in writing and should contain specific details that would enable a service provider to promptly disable access to the infringing use of your work. Bear in mind the following steps when you are preparing the takedown notice:
Step 1: Establish ownership
This remedy is only available to copyright owners. Even if you are using the services of a lawyer, the complaint itself must bear your name and establish that you are the owner (or exclusive licensee) of that content. If you are a licensee and have the exclusive right to publish it online, make sure to attach a copy of the license agreement. If a photo you took, video you shot or article you wrote has been published without your permission, you should provide a link to the original (preferably with a time-stamp to establish precedence).
Step 2: Describe the work
The online service provider must be able to identify your work in order to comply with your request. YouTube has countless videos, and Facebook is replete with photos and videos of every kind, so it is simply impossible for them to sift through it all. Try to be concise and provide as many details as you can to describe the content in question. Do not be vague.
Step 3: Provide a link to the infringing content
If you were to report a crime to the police, you would try to provide the exact location of where it occurred. The same principle applies to the internet. We refer to this as a URL (or link). This is the online location describing where the content has been made available without your permission, and will help the service provider quickly disable access to that page.
Step 4: Identify the infringer
If you know the identity of the person who illegally uploaded your content, mention his/her name in the complaint. If you have no idea, that’s okay.
Step 5: Explain why it is not fair use
This is the trickiest part, since it requires a certain degree of legal knowledge. The complainant must establish that the unauthorised use of the content is not otherwise permitted under the Indian Copyright Act. This is referred to as ‘fair use’. For example, I may have the right to use your photograph in educational material or as part of a news story. I could quote excerpts from your book in a review or reverse-engineer your software to make it interoperable with another application. These are case-specific determinations and are often legally complex. However, these details must be present in your complaint, so it is best to consult a lawyer before drafting this part of the notice.
Step 6: Back up the complaint with a court order
Indian copyright law requires the complainant to support the original takedown notice by obtaining a court order. The order must restrain the service provider from facilitating access to the allegedly infringing content. A copy of the order must be sent to the service provider within 21 (twenty-one) days from the date on which it received the original takedown notice. This is the most important aspect of the notice and takedown system: If you are unwilling or unprepared to file a suit for copyright infringement, don’t bother sending a takedown notice. If you fail to produce a court order that upholds the original takedown notice, within the prescribed period, you will not be able to make a complaint again in respect of that work (well, technically you could, but the service provider is not obliged to remove the content or respond to you). If this seems unreasonable to you, bear in mind that in the absence of such a requirement, online service providers would be flooded with frivolous complaints.
The service provider must disable access to the infringing content within 36 hours of being notified. This should be adequate to ensure that no continuing/additional damage results. But do keep in mind that if you fail to produce a valid court order within the prescribed period, the content will most likely be restored by the service provider.
Hope this helped explain how a notice-and-takedown system works, and the specific conditions under Indian law. If you have any questions or comments, please use the contact page.
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