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Saturday, July 24, 2021

Explained: What are DMCA notices for protection of intellectual property online?

What is the DMCA and how does it ensure implementation of the WIPO treaties? Who can generate a DMCA notice and how are they sent to companies or websites?

Written by Aashish Aryan , Edited by Explained Desk | New Delhi |
Updated: June 28, 2021 9:03:16 am
Any content creator of any form, who believes that their original content has been copied by user or a website without authorisation can file an application citing their intellectual property has been stolen or violated.

Union Minister for Electronics and Information Technology and for Law and Justice Ravi Shankar Prasad Friday was locked out of his Twitter account for an hour allegedly over a notice received for violation of the Digital Millennium Copyright Act (DMCA). The DMCA oversees the implementation of two 1996 treaties signed by World Intellectual Property Organisation (WIPO) member nations.

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What is the DMCA and how does it ensure implementation of the WIPO treaties?

The Digital Millennium Copyright Act, or DMCA, is a 1998 law passed in the US and is among the world’s first laws recognising intellectual property on the internet. Signed into law by the then US President Bill Clinton, the law oversees the implementation of the two treaties signed and agreed upon by member nations of the World Intellectual Property Organisation (WIPO) in 1996.

WIPO members had in December 1996 agreed upon two treaties, namely the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Both the treaties require member nations and signatories to provide in their respective jurisdictions, protection to intellectual property that may have been created by citizens of different nations who are also co-signatories to the treaty.

The said protection, accorded by each member state, must not be any less in any way than the one being given to a domestic copyright holder. Further, it also obligates that signatories to the treaty ensure ways to prevent circumvention of the technical measures used to protect copyrighted work. It also provides the necessary international legal protection to digital content.

What is WIPO and how does it ensure protection of content on the internet?

With the rapid commercialisation of internet in late 1990s which started with static advertisement panels being displayed on the internet, it became important for website owners to get the user to spend more time on their webpage. For this, fresh content was generated by creators and shared over the Internet. The problem started when the content would be copied by unscrupulous websites or users, who did not generate content on their own. Further, as the Internet expanded worldwide, websites from countries other than the one where the content originated, also started to copy the unique content generated by the websites.

To avoid this and bring to task the unauthorised copiers, the members of WIPO, which was established in 1967, also agreed to extend the copyright and intellectual property protection to digital content. As of date, 193 nations across the world, including India, are members of WIPO.

Who can generate a DMCA notice and how are they sent to companies or websites?

Any content creator of any form, who believes that their original content has been copied by user or a website without authorisation can file an application citing their intellectual property has been stolen or violated.

Users can either approach the website on which the content has been hosted, or third party service providers like DMCA.com, which utilise a team of experts to help take down the stolen content for a small fee.

In the case of social media intermediaries like Facebook, Instagram or Twitter, content creators can directly approach the platform with a proof of them being original creators. Since these companies operate in nations which are signatories to the WIPO treaty, they are obligated to remove the said content if they receive a valid and legal DMCA takedown notice.

Platforms, however, also give the other users against whom allegations of content cheating have been made, a chance to reply to the DMCA notice by filing a counter notice. The platform shall then decide which party is telling the truth, and shall accordingly, either restore the content or keep it hidden.

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