Practical guidance on ‘copyright claims’ from digital services providers – are you sure it’s legit?
There has been a recent emergence of online digital services providers, which raise claims of ‘copyright infringing material’ or similar against publishers of online content, with a view to protecting their clientele’s copyright works.
The issue? These copyright claims in some circumstances appear to be made without conducting the proper copyright infringement analysis, including forming a view on originality, infringement, or non-infringing fair dealing uses or other defences.
Business model – digital services providers
Copyright based digital services providers generally operate in accordance with the following key steps:
1. requiring users to upload their ‘copyright work’ to the digital services provider’s website, for example, in the form of digital images or text;
2. the uploaded ‘copyright work’ may then be digitally timestamped. A ‘digital timestamp’ may be admissible as evidence in court that a particular copyright work existed at a point-in-time for enforcement purposes. However, a digital timestamp does not validate or otherwise confer copyright protection to the particular work to which it is attached;
3. searches are then conducted, and algorithms are utilised, by the digital services provider to identify and produce comparisons of content published online that is similar to their users’ ‘copyright work’; and
4. when similar content is identified, the digital services provider may then raise a ‘copyright claim’ and request removal and claim compensation for the ‘unlicensed use’ by:
(a) automatically contacting the publisher of the similar online content; or
(b) providing the search results to its user for review, and (if elected by the user) contacting the publisher of the similar online content.
The copyright business model of digital services providers seems oriented towards finding ‘copies’ or similar of the content uploaded by their users for the purposes of raising ‘copyright claims’ to then request the removal of the ‘copyright infringing material’ and/or claim compensation.
These ‘copyright claims’ generally use language or imagery that impliedly or directly implicates copyright law. However, it is not clear if they appropriately consider key steps of copyright infringement analysis including forming a view on:
1. originality – does copyright subsist in their user’s uploaded ‘copyright work’? Noting that copyright can protect literary, dramatic, musical or artistic works, that are the original expression of an idea.
2. infringement – has a substantial part of the ‘copyright work’ been used by the third-party online publisher? This test is qualitative test, not quantitative.
3. non-infringing fair dealing uses or other defences – for example, is the use of the ‘copyright work’ a fair dealing for the purposes of criticism or review? Does another defence apply?
For these reasons, if you are on the receiving end of a ‘copyright claim’ from a copyright digital services provider, it is worth asking the question: is this a legitimate claim?
What to look for
A genuine copyright infringement claim will typically:
1 clearly identify the copyright work and the owner;
2 outline that copyright subsists in the work, for example, by including an explanation of how the work:
(a) falls into a protected category under the Australian copyright law;
(b) has a connection to Australia;
(c) is reduced to a material form; and
(d) is original, i.e. the product of a human creator’s own intellectual skill and effort;
3 identify the owner’s exclusive copyrights to the work;
4 explain how the counterparty’s action infringes the owner’s copyrights, by identifying that:
(a) a substantial part of the copyright work has been used by the counterparty;
(b) without permission in one of the ways exclusively reserved to the author or owner; and
5 state that if a satisfactory response is not received, the claimant may choose to escalate to legal proceedings.
What to do
If you receive a copyright infringement claim, proceed with caution, and seek advice from an experienced copyright lawyer, as the devil is in the detail.
If you are interested in learning more, or require assistance with a copyright matter, please contact a member of our Digital & IP team – here
With special thanks to Harriet Young (Lawyer), and Gia Saldanha (Clerk), for preparing this article.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.