A Complete Analysis of Safe Harbor Provisions Under DMCA
Copyright Law is a territorial right, and in India, this law is governed by the Copyright Act, 1957. In the UK, it is governed by the Copyright, Designs & Patents Act, 1988 and in the US, it is regulated by the Copyright Act, 1976. However, with the roar of social media, there has been a requirement for an individual law to deal with Copyright on digital platforms. In this blog, we will discuss Safe Harbor Provisions under DMCA.
Provisions of the DMCA (Digital Millennium Copyright Act) that protect an OSP (Online Service Provider) from Copyright Infringement liability depends on the actions of their users where definite conditions are met. The Digital Millennium Copyright Act provides safe harbours for the following Online Service Provider activities:
- Performing as a stream for transmitting material via its network/system;
- Storing material at a user’s direction;
- Temporarily saving material for transmission (caching);
- Providing links or other tools for placing material online.
What is Safe Harbor?
Before we discuss Safe Harbor Provisions under DMCA, let’s understand the meaning of Safe Harbor. Safe Harbor is a provision of a regulation or statute that states that certain conduct will be considered not to infringe a provided rule. It is generally found in association with a more vague, overall standard. By contrast, “unsafe harbours” describe conduct that will be considered to infringe the rule. The objective of Safe Harbor Provisions under DMCA is to make sure that no one except the real infringer or violater should be asked to indemnify.
Following are four Safe Harbor Provisions under DMCA:
- Transmission Safe Harbor: When violating material is sent by end-users or others, the violating material is routed, connected or transmitted. Therefore, it safeguards OSPs (Online Service Providers), especially telecommunications companies or entities, from such liability.
- Caching Safe Harbor: It protects the service provider from liability for storing violating material from a 3rd part on a network/system administrated or controlled by or for the OSP.
- Storage Safe Harbor: The material of the user that is directed to be made or kept available on the OSP’s website may be violating. This category comprises the majority of online services & websites. Therefore, it safeguards OSPs from the liability that comes with it.
- Information Location Tools Safe Harbor: By using information locating tolls, you may be responsible for linking or referring users to a digital location containing violating material or conduct. Therefore, it safeguards the Online Service Providers (OSPs) from such liability.
Eligibility Criteria for Safe Harbor Provisions under DMCA
The Safe Harbor options permit immunity against Copyright claims under the US Laws when the source of a likely threat to the Copyright protection is the conduct of the OSP Online Service Producer’s end users.
Therefore, the Safe Harbor valve doesn’t safeguard against:
- The Online Service Provider’s direct violating activities;
- Non-Copyright Claims, like Trademark Infringement, rights of publicity, unfair competition, defamation, etc.
- The Online Service Provide performing in concert with users to create infringements;
- Copyright claims under foreign laws.
Although the DMCA doesn’t provide legal protection against Non-Copyright claims or foreign, it is common for Online Service Providers to offer a DMCA like notice and a takedown regime for other IP claims and for concerns that might occur under foreign law. Owners of other rights and are often willing to use such a process instead of filing a lawsuit.
What is the process to ensure the protection of Safe Harbor Provisions under DMCA?
The first step is setting up the Safe Harbor for the caching, storage, and information location tools Safe Harbors are as follows:
- The OSP should designate an agent for service of Copyright Claims:
- On their website;
- In an online filing with the US Copyright Office;
- Adopt, write, and post on their website a “Repeat Infringer Policy”. Moving forward, for the continuing effective gain from the safe harbour immunity. The OSPs should:
- Manage the takedown notices;
- Reasonably implement its repeat infringer policy.
Such norms are issued by the DMCA to make sure that a uniform compliance procedure is followed by all the OSPs to avoid any problem.
Infringement Caused to the Right Owner
In the condition where you are the Copyright owner, you have to file a complaint with the DMCA for an infringement notice of your Copyright.
Requirements of such notice are:
- Classification of the copyrighted work (or a representative list of such works) that the Copyright owner asserts has been infringed;
- The Copyright owner or contact details of an agent;
- Classification of the allegedly violating material, as well as sufficient information to permit the OSP to determine on their website;
- A statement that the above information is correct and that the complainant is the Copyright owner, its agent, or is certified to act on behalf of the Copyright owner, or is the owner of one of the exclusive rights under Copyright Law that is allegedly violated following part under penalty of perjury;
- The Copyright owner’s or its agent’s digital or physical signature.
A report by US Copyright Office was submitted to examine the effectiveness of the guidelines of DMCA, especially regarding Section 512 of the DMCA, furnishing Safe Harbor to OSPS and its actual owners. Regardless of the regular submission of a massive number of take-down notices and counter-notices, this provision of the DMCA has not been able to bridge the gap between the Copyright Infringement of content on the internet and the cases reported. Therefore, it is visible that the DMCA requires to undergo certain modifications to incorporate & function as a tightly join legislation towards online Copyright Infringement.
Read our article:Everything You Need to Know About Instagram Copyright Infringement