Copyright ‘safe harbor’: A primer for PR pros

The Digital Millennium Copyright Act serves to police online content, so don’t mistakenly error. Protect your organization or client and avoid legal repercussions by following these steps.

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 website.

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.

Safe harbor

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 example above.

3. Notify the user that the material has been removed.

4. Notify the copyright holder if proper counter-notice is provided by the user.

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 team.

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.

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Topics: PR

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