My copyrighted material has been published on the internet without my authorization. What can be done?
If your objective is to have the material removed, an infringement notice may be sent to the internet service provider publishing the offending material, as well as popular search engines such as Google and Yahoo, requesting the removal of the pages containing the infringing material.
If you are in Thailand, you may also be able to seek damages and criminal prosecution of the infringing party in Thailand courts for a violation of the Thailand Copyright Act if the offense was committed in Thailand.
What is the Digital Millennium Copyright Act (DMCA)?
The DMCA is a US copyright law enacted in 1998. The "Safe Harbor" provisions of the Act protect internet service providers who adhere to the DMCA established procedure for accepting and following up on notices of infringements from the copyright violations of their customers. Most internet service providers have responded to the DMCA by taking refuge in the "Safe Harbor" provisions and establishing a procedure for accepting notices and removing web pages containing alleged copyright infringements.
What happens after an infringement notice is sent to an internet service provider?
U.S. internet service providers taking refuge in the "Safe Harbor" provisions of the DMCA are required to review the notice and expeditiously remove or disable access to the offending web page(s).
After removal, the internet service provider is required to give notice to the owner of the webpage(s) containing the infringement. If a counter-notice is filed, the person who submitted the original notice will have 14 days to file a case in U.S. courts before the internet service provider will be required by DMCA regulations to restore the page(s).
U.S. internet service providers not taking refuge in the "Safe Harbor" provisions, as well as internet service providers in other jurisdictions, are not required to remove webpages after receipt of an infringement notice however, they may be liable pursuant to the laws in their jurisdiction.
Are internet service providers required to investigate alleged violations before removing pages containing alleged infringements?
Internet service providers must ensure that all required information is included in the notice; however, they are not required to make a judgment as to whether an infringement occurred.
As a measure to prevent copyright owners from wrongfully claiming infringements, the internet service provider must alert the owner of the infringing webpage(s) and provide them with the opportunity to file a counter-notice claiming their materials have been wrongfully removed.
Does copyright law protect both the text and design of webpages?
Generally copyright law protects original works fixed in a tangible medium. If your web design is very generic and for instance based on a template then it is probably not copyrightable. On the other hand, if your design is truly unique and original then it may be copyrightable. Text may also be deemed too generic to be copyrightable. However it is generally easier to prove uniqueness and originality with text.
The internet service provider publishing the page on which the infringement occurs is not based in the U.S. What can be done?
You may be able to seek damages from the offender and/or internet service provider in the jurisdiction(s) in which the violation(s) occurred. Thailand, for instance has several laws that allow for criminal and civil damages against violators of intellectual property rights.
You still may want to file an infringement notice with the U.S. based internet search engine companies, Google and Yahoo, as the removal of the offending pages from their directories will limit access to the infringing material.