How carefully do you walk the copyright tightrope?
Success in public relations and marketing in the digital communications era
involves building platforms for and encouraging interactive messaging. To
that end, PR pros and social media marketers must pay particular attention
to copyright laws when using user-generated content.
Allowing users to post and comment on online content can foster engagement
and traffic to your company or client’s website. It can also create
exposure for claims resulting from what your users post or say on your
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For example, if a user uploads copyrighted material, such as a photo or
video, to your company or client’s website, your website can be held
secondarily liable as a copyright infringer if it’s not compliant with the
Digital Millennium Copyright Act or DMCA. There are, however, steps you can
take to protect yourself from these claims.
Under the DMCA, operators of websites that allow the posting of
user-generated content are insulated from liability for copyright
infringement under certain conditions. To qualify for this “safe harbor,”
your company or client must take the following steps:
1. Publish on its website a policy for addressing repeated infringing
activity and implement a termination policy for repeat infringers. Even
though a website provider has no obligation to constantly monitor for
infringing conduct, it must have a procedure in place to remove repeat
offenders when notified. Similarly, social media sites hosting
user-generated content should have a clear and working copyright takedown
policy in place, meaning that your company or client’s websites must have a
system to promptly remove the accused or copyrighted material when notified
of the claimed infringement identified by the copyright holder. For
example, you click to watch a video on YouTube only to see the message,
“This video has been removed due to a copyright claim.” That’s YouTube
enforcing its DMCA takedown policy.
2. Properly comply with a notice of claimed infringement when received,
including prompt removal of the accused material, as is stated in the
3. Notify the user that the material has been removed.
4. Notify the copyright holder if proper counter-notice is provided by the
5. Restore the removed material if proper counter-notice is provided and
the copyright holder does not file suit within 10 days.
6. As part of a robust takedown policy, companies should register a
designated copyright or takedown agent with the Copyright Office to receive
the takedown notices concerning potentially infringing material. This is
the final step in qualifying for the safe harbor under the DMCA.
Considering the significant potential liability that can arise due to
actions by users of your website, the DMCA provides extremely valuable and
cost-effective protection to anyone operating interactive websites.
A new twist
On Dec. 1, 2016, the Copyright Office implemented a new electronic agent
registration system. Why does this matter?
Even if your company or client previously registered an agent, it must now
re-register that agent through the electronic system. To avoid a lapse in
protection, this new agent registration must occur no later than Dec. 31,
2017. Registrations must also be renewed every three years under the new
system, or they will lapse.
Here’s the bottom line: If you operate a website for your company or on
behalf of a client and they have never implemented this protection under
the DMCA, now is a good time to do so. If you’re not sure, ask your legal
Although it might not be your direct responsibility to ensure your company
or client has DMCA protection, having some knowledge on the front end can
help public relations professionals and marketers prevent costly mistakes
down the road.
Steve Gillen and Sean Owens are attorneys at
Wood Herron & Evans.