Take Down Notices and Damages
January 8, 2010
What do I do if I think that someone has infringed my copyright on the internet by posting my content on their website? The first question to ask is where is the infringing website located? Is it a ‘.com’ or another local extension. For infringing websites based in the US the Digital Millennium Copyright Act 1998 and other legislation will apply. Before considering legal action your main option is to contact the infringer directly and ask them to ‘take down’ the infringing content. If your request is ignored, you could also contact the infringing website’s host (they should have an agent that deals solely with take down notices). For what such ‘take down notices’ should include see here (US Code, Title 17/Chapter 5/ Section 512 (c)3 or for a sample see IPWatchdog blog).
Bringing a copyright infringement action to the US
It is important to bear in mind that the US has a system of registration of copyright and that in the UK the law does not require registration. But does the US recognise copyright from abroad which is established through other means apart from registration? According to a recent US ruling involving YouTube US District Judge Louis Stanton of New York wrote that the DMCA 1998 “bars statutory damages for all foreign and domestic works not timely registered” (see ruling here). Therefore, a UK claim of copyright will not lead to damages in the US. There is an exception, however, for live broadcasts such as sporting events. However, the same judge was of the view that one could still bring an “infringement suit […] based on an unregistered foreign [copyright work]”. In summary, a foreign action consisting of an unregistered copyright can be taken to the US but damages will not be available.
Bringing a copyright infringement action in the UK
If the owner of the infringing website is resident in the UK then UK jurisdiction would come into play. As with US copyright infringement first approach the owner of the site and then their ISP.The substance of copyright law derives from the Copyright, Designs and Patents Act 1988 (CDPA 1988)where it sets out the types of works that benefit from copyright, the question of authorship and the duration of copyright. Unlike the US, in the UK copyright is inherent in the creation – no registration is required. The display on a website of a copy of someone’s else work would be a basic infringement under the Act.
Remedies in the UK
As to the question of remedies available for the copyright owner, under section 96 of the Act, a number of options are available for copyright infringement. These include damages, injunctions, accounts (accounts for profits). In more detail, a damages claim will calculate the depreciation of the value of the copyright caused by the infringement. The Court is also able to provide ‘additional damages’ and in so doing will consider matters such as the flagrancy of the infringement and how much benefit the defendant received from the infringement. If the defendant has received a financial benefit from exploiting the copyrighted works then an account of profits may also be made to the claimant (however, either an account of profits may be claimed or damages, not both and ‘additional damages’ are not available for account of profit claims).
Copyright owners in the UK are showing a tendency to claim for damages for website related infringements. It seems that it will not be enough to simply remove the content from the website. Last year Getty Images, a leading provider of digital media, managed to retrieve damages from a removal firm JA Coles plus legal costs for using a photo from Getty on their website (See Outlaw article here). It seems that Getty has an automated method of spotting infringements (see blog article here) and a pro active attitude towards enforcing their copyright in their images.
