U.S. Vs. Europe: Notice and Takedown

When reader and commenter Matthijs wrote me to ask if I had knowledge of any important copyright legislation in Europe, I was admittedly at a loss. As a United States citizen dealing with copyright on a Web hosted mainly within my own country’s borders, I was only used to dealing with U.S. copyright law.

However, I quickly realized that, as the Web becomes increasingly globalized, this U.S.-centric attitude toward copyright will become obsolete. International treaties and foreign copyright policy will become much more important in the coming years.

One of the most important policies to follow will be that of the European Union (EU). With 25 member states and an estimated 460 million in population, the EU will likely become a driving force behind much of the Internet, including copyright enforcement.

Furthermore, while it is very similar to U.S. copyright law and much of copyright law has been standardized by means of international treaties, there are still some important differences to note.

Thus, over the next few weeks, we’re going to take a look at EU copyright law and compare it to that of the United States in order to gain a better understanding of it.

The first area topic of discussion is the notice and takedown provision that so many use when dealing with plagiarism and content theft online.

United States: A DMCA Review

In the U.S. the notice and takedown provision is covered by the Digital Millennium Copyright Act of 1998 (DMCA) (link PDF). The provision, which shields hosts from being sued for copyright infringement provided they adhere to certain standards, requires that anyone wishing to file a notice of copyright infringement meet the following criteria including the following:

  • The name, address, and electronic signature of the complaining party
  • The infringing materials and their Internet location, or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials.
  • Sufficient information to identify the copyrighted works
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of.
  • A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner.

While the DMCA requirements might seem complicated and intimidating, especially to laypeople like myself, they do create a set of safeguards that deter abuse.

First, the system prohibits third-party abuse complaints. Only the copyright owner or someone authorized by them can file a complaint.

Second, it offers a punishment, the penalty of perjury, for lying while filing a DMCA notice.

Third, it ensures that the infringing works are properly identified and that some evidence is provided to the infringement.

Finally, and perhaps most importantly, it offers a putback procedure that enables Webmasters hit with obviously false DMCA notices to get their sites put back within ten days. While this is not a perfect solution, it does do a great deal to deter fraud.

EU: Notice and Takedown

By contrast, the framework for the European notice and takedown provision is laid out in the European Directive on Electronic Commerce  (EDEC) (link PDF). The EDEC, unlike the DMCA, is not a pure copyright law. It deals with many issues of electronic commerce including electronic contracts, spam and dispute resolution.

Articles 12-14 of the directive deal with liability of service providers. Articles 12 and 13 remove all liability for providers that are “mere conduits” of information or are simply engaging in caching.

Article 14 is the one that deals with Web hosts directly. The five paragraph, three-item article simply states that hosts are not liable for copyright infringement on their servers if they are not aware of the infringement and “upon obtaining such knowledge or awareness acts expeditiously to remove or to disable access to the information.”

The article itself sets no specifications as to what format a notice of infringement should take, who is able to send one or what information is required. There are no listed penalties for filing a false report, no guidelines for putting back falsely removed content and no requirements to adequately identify infringing works.

In short, the main difference between the U.S. and the EU on matters of notice and takedown is that the EU removes all of the formalities that exist under U.S. law and, with them, all of the protections.

EU: Notice and Takedown In Practice

A 2004 study on EU Notice and Takedown procedures (link PDF) found that 70% of hosts complied with a generic request to remove an article that was clearly in the public domain (the author had been dead for nearly 120 years). This is despite the fact that the sender was using a free Hotmail account and writing on behalf of a fictitious organization.

Of the hosts, only one looked at the page and questioned the validity of the complaint. Another simply did not respond to the queries and a third only denied the request because of the nature of the sender’s account.

This raises understandable concerns for free speech activists that worry the provision could be used to unjustly shut down sites that carry unpopular speech.

However, for people fighting content theft and plagiarism, this means that, when dealing with European hosts, there are very few specifics one needs to follow. Generally, an informal letter to the abuse department of the respective host should take care of matters.

Despite this, I still would encourage anyone with a copyright complaint to include much of the same information that one would find in a regular DMCA notice including titles of the works involved, specific infringing links and links to original works. While you don’t need the legalese of a full DMCA notice, providing background and evidence is always helpful to a host, no matter what the country.

Conclusions

In the end, the most difficult obstacle to overcome when dealing with EU hosts will most likely be the language barrier. With so many languages spoken within the EU (twenty are listed on the EU homepage alone), almost no one can read and write them all.

Even though copyright translates well across most borders, especially in the EU, finding who to write regarding infringement and sending them a letter that they can understand is often a difficult challenge.

This is an area that, while Babelfish can help, more needs to be done.

Regardless, as understandably controversial as the EU directive on the subject is, it undoubtedly bodes well for copyright holders, especially those dealing with copyright infringement online. Though it goes well beyond what U.S. law does, those familiar with the U.S. law should have no trouble working within the EU, at least as far as the law is concerned.

[tags]Plagiarism, Content Theft, Copyright Infringement, United States, European Union, DMCA, EU[/tags]

19 comments
raj
raj

Jonathan, good point. The Convention is getting outdated. Yes, we need more powerful standards, as well as best practices and techniques for actually fighting copyright infringement and general plagiarism. I think that your site is aiding in that regard. Keep up the good work.

raj
raj

Jonathan, good point. The Convention is getting outdated. Yes, we need more powerful standards, as well as best practices and techniques for actually fighting copyright infringement and general plagiarism. I think that your site is aiding in that regard. Keep up the good work.

raj
raj

Jonathan, good point. The Convention is getting outdated. Yes, we need more powerful standards, as well as best practices and techniques for actually fighting copyright infringement and general plagiarism. I think that your site is aiding in that regard. Keep up the good work.

JB
JB

Raj,

The Berne convention is an important document and one I've touched on a few times. It offers a great deal of international guidance as to what is copyrighted, what protections are afforded by copyright law and it provides a set of minimum standards for countries to follow that are, in turn, enacted in to each individual nation's code.

The problem with the convention is that, while it's important, it was drafted in the seventies, well before the advent of the Internet as we know it.

Also, the treaty doesn't deal much with procedures, only protections. You know, roughly, what protections your work has but learning enforcing those rights can still be tricky.

Finally, many member nations haven't implimented all of the requirements of the treat. The U.S., for example, is yet to enforce Moral Rights though it's mandated by the treaty.

The hope is that WIPO, the World Intellectual Property Organization, will help provide some standards of copyright enforcement.

That, most likely, is a long way off though.

Matthijs,

My main problem with the language barrier is that it can be hard to find where to send the complaint to. Even if the person can read English, the challenge of finding their email address on a French or German site can be overwhelming.

JB
JB

Raj,

The Berne convention is an important document and one I've touched on a few times. It offers a great deal of international guidance as to what is copyrighted, what protections are afforded by copyright law and it provides a set of minimum standards for countries to follow that are, in turn, enacted in to each individual nation's code.

The problem with the convention is that, while it's important, it was drafted in the seventies, well before the advent of the Internet as we know it.

Also, the treaty doesn't deal much with procedures, only protections. You know, roughly, what protections your work has but learning enforcing those rights can still be tricky.

Finally, many member nations haven't implimented all of the requirements of the treat. The U.S., for example, is yet to enforce Moral Rights though it's mandated by the treaty.

The hope is that WIPO, the World Intellectual Property Organization, will help provide some standards of copyright enforcement.

That, most likely, is a long way off though.

Matthijs,

My main problem with the language barrier is that it can be hard to find where to send the complaint to. Even if the person can read English, the challenge of finding their email address on a French or German site can be overwhelming.

JB
JB

Raj,The Berne convention is an important document and one I've touched on a few times. It offers a great deal of international guidance as to what is copyrighted, what protections are afforded by copyright law and it provides a set of minimum standards for countries to follow that are, in turn, enacted in to each individual nation's code.The problem with the convention is that, while it's important, it was drafted in the seventies, well before the advent of the Internet as we know it. Also, the treaty doesn't deal much with procedures, only protections. You know, roughly, what protections your work has but learning enforcing those rights can still be tricky. Finally, many member nations haven't implimented all of the requirements of the treat. The U.S., for example, is yet to enforce Moral Rights though it's mandated by the treaty.The hope is that WIPO, the World Intellectual Property Organization, will help provide some standards of copyright enforcement. That, most likely, is a long way off though.Matthijs, My main problem with the language barrier is that it can be hard to find where to send the complaint to. Even if the person can read English, the challenge of finding their email address on a French or German site can be overwhelming.

raj
raj

As far as I know, and as I've been writing about for several years, The Berne Convention (http://www.law.cornell.edu/treaties/berne/overview.html) on international copyright issues was adopted by all member nations of the UN (United Nations). That would include any countries in the European Union as well as the U.S. There are newer documents such as the DMCA, which also need to be taken into consideration at the same time.

raj
raj

As far as I know, and as I've been writing about for several years, The Berne Convention (http://www.law.cornell.edu/treaties/berne/overv...) on international copyright issues was adopted by all member nations of the UN (United Nations). That would include any countries in the European Union as well as the U.S. There are newer documents such as the DMCA, which also need to be taken into consideration at the same time.

raj
raj

As far as I know, and as I've been writing about for several years, The Berne Convention (http://www.law.cornell.edu/treaties/berne/overview.html) on international copyright issues was adopted by all member nations of the UN (United Nations). That would include any countries in the European Union as well as the U.S. There are newer documents such as the DMCA, which also need to be taken into consideration at the same time.

raj
raj

As far as I know, and as I've been writing about for several years, The Berne Convention (http://www.law.cornell.edu/treaties/berne/overv...) on international copyright issues was adopted by all member nations of the UN (United Nations). That would include any countries in the European Union as well as the U.S. There are newer documents such as the DMCA, which also need to be taken into consideration at the same time.

JB
JB

Raj,

The Berne convention is an important document and one I've touched on a few times. It offers a great deal of international guidance as to what is copyrighted, what protections are afforded by copyright law and it provides a set of minimum standards for countries to follow that are, in turn, enacted in to each individual nation's code.

The problem with the convention is that, while it's important, it was drafted in the seventies, well before the advent of the Internet as we know it.

Also, the treaty doesn't deal much with procedures, only protections. You know, roughly, what protections your work has but learning enforcing those rights can still be tricky.

Finally, many member nations haven't implimented all of the requirements of the treat. The U.S., for example, is yet to enforce Moral Rights though it's mandated by the treaty.

The hope is that WIPO, the World Intellectual Property Organization, will help provide some standards of copyright enforcement.

That, most likely, is a long way off though.

Matthijs,

My main problem with the language barrier is that it can be hard to find where to send the complaint to. Even if the person can read English, the challenge of finding their email address on a French or German site can be overwhelming.

JB
JB

Raj,
The Berne convention is an important document and one I've touched on a few times. It offers a great deal of international guidance as to what is copyrighted, what protections are afforded by copyright law and it provides a set of minimum standards for countries to follow that are, in turn, enacted in to each individual nation's code.
The problem with the convention is that, while it's important, it was drafted in the seventies, well before the advent of the Internet as we know it.
Also, the treaty doesn't deal much with procedures, only protections. You know, roughly, what protections your work has but learning enforcing those rights can still be tricky.
Finally, many member nations haven't implimented all of the requirements of the treat. The U.S., for example, is yet to enforce Moral Rights though it's mandated by the treaty.
The hope is that WIPO, the World Intellectual Property Organization, will help provide some standards of copyright enforcement.
That, most likely, is a long way off though.
Matthijs,
My main problem with the language barrier is that it can be hard to find where to send the complaint to. Even if the person can read English, the challenge of finding their email address on a French or German site can be overwhelming.

JB
JB

Raj, The Berne convention is an important document and one I've touched on a few times. It offers a great deal of international guidance as to what is copyrighted, what protections are afforded by copyright law and it provides a set of minimum standards for countries to follow that are, in turn, enacted in to each individual nation's code. The problem with the convention is that, while it's important, it was drafted in the seventies, well before the advent of the Internet as we know it. Also, the treaty doesn't deal much with procedures, only protections. You know, roughly, what protections your work has but learning enforcing those rights can still be tricky. Finally, many member nations haven't implimented all of the requirements of the treat. The U.S., for example, is yet to enforce Moral Rights though it's mandated by the treaty. The hope is that WIPO, the World Intellectual Property Organization, will help provide some standards of copyright enforcement. That, most likely, is a long way off though. Matthijs, My main problem with the language barrier is that it can be hard to find where to send the complaint to. Even if the person can read English, the challenge of finding their email address on a French or German site can be overwhelming.

matthijs
matthijs

Thanks for the write-up Jonathan.

That's one good thing about the EU: the creation of common legislation for all countries in the EU. As markets globalize that's very important.

Hopefully this can be taken even further on a global level, so that international policy becomes more important. And besides the US and Europe, let's not forget Asia.

About the language problem: indeed it can be difficult with so many languages. However, I have a feeling that English is becoming more and more a commonly used language in almost all European countries. Especially since people working on the web are more internationally oriented and might be mostly from a younger generation. Even though we should or could consider working together in translating the most important information and documents. I could help in at least some languages.

What's also important I think is generating a better consciousness of the matter and spreading that knowledge. So that people feel they can indeed take action, even when an infringing party is in another country or continent. But with European and international policy becoming more important that should be possible.

matthijs
matthijs

Thanks for the write-up Jonathan.

That's one good thing about the EU: the creation of common legislation for all countries in the EU. As markets globalize that's very important.

Hopefully this can be taken even further on a global level, so that international policy becomes more important. And besides the US and Europe, let's not forget Asia.

About the language problem: indeed it can be difficult with so many languages. However, I have a feeling that English is becoming more and more a commonly used language in almost all European countries. Especially since people working on the web are more internationally oriented and might be mostly from a younger generation. Even though we should or could consider working together in translating the most important information and documents. I could help in at least some languages.

What's also important I think is generating a better consciousness of the matter and spreading that knowledge. So that people feel they can indeed take action, even when an infringing party is in another country or continent. But with European and international policy becoming more important that should be possible.

matthijs
matthijs

Thanks for the write-up Jonathan.That's one good thing about the EU: the creation of common legislation for all countries in the EU. As markets globalize that's very important. Hopefully this can be taken even further on a global level, so that international policy becomes more important. And besides the US and Europe, let's not forget Asia.About the language problem: indeed it can be difficult with so many languages. However, I have a feeling that English is becoming more and more a commonly used language in almost all European countries. Especially since people working on the web are more internationally oriented and might be mostly from a younger generation. Even though we should or could consider working together in translating the most important information and documents. I could help in at least some languages.What's also important I think is generating a better consciousness of the matter and spreading that knowledge. So that people feel they can indeed take action, even when an infringing party is in another country or continent. But with European and international policy becoming more important that should be possible.

matthijs
matthijs

Thanks for the write-up Jonathan.

That's one good thing about the EU: the creation of common legislation for all countries in the EU. As markets globalize that's very important.

Hopefully this can be taken even further on a global level, so that international policy becomes more important. And besides the US and Europe, let's not forget Asia.

About the language problem: indeed it can be difficult with so many languages. However, I have a feeling that English is becoming more and more a commonly used language in almost all European countries. Especially since people working on the web are more internationally oriented and might be mostly from a younger generation. Even though we should or could consider working together in translating the most important information and documents. I could help in at least some languages.

What's also important I think is generating a better consciousness of the matter and spreading that knowledge. So that people feel they can indeed take action, even when an infringing party is in another country or continent. But with European and international policy becoming more important that should be possible.

matthijs
matthijs

Thanks for the write-up Jonathan.
That's one good thing about the EU: the creation of common legislation for all countries in the EU. As markets globalize that's very important.
Hopefully this can be taken even further on a global level, so that international policy becomes more important. And besides the US and Europe, let's not forget Asia.
About the language problem: indeed it can be difficult with so many languages. However, I have a feeling that English is becoming more and more a commonly used language in almost all European countries. Especially since people working on the web are more internationally oriented and might be mostly from a younger generation. Even though we should or could consider working together in translating the most important information and documents. I could help in at least some languages.
What's also important I think is generating a better consciousness of the matter and spreading that knowledge. So that people feel they can indeed take action, even when an infringing party is in another country or continent. But with European and international policy becoming more important that should be possible.

matthijs
matthijs

Thanks for the write-up Jonathan. That's one good thing about the EU: the creation of common legislation for all countries in the EU. As markets globalize that's very important. Hopefully this can be taken even further on a global level, so that international policy becomes more important. And besides the US and Europe, let's not forget Asia. About the language problem: indeed it can be difficult with so many languages. However, I have a feeling that English is becoming more and more a commonly used language in almost all European countries. Especially since people working on the web are more internationally oriented and might be mostly from a younger generation. Even though we should or could consider working together in translating the most important information and documents. I could help in at least some languages. What's also important I think is generating a better consciousness of the matter and spreading that knowledge. So that people feel they can indeed take action, even when an infringing party is in another country or continent. But with European and international policy becoming more important that should be possible.

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  1. [...] Compare this to the EU where: [...]

  2. [...] When you look at the potential ways a false notice can backfire, it becomes clear that doing so is a very risky proposition. Furthermore, as bad as the U.S. system may be, it is still better than the EU system, which offers none of the above items and is even more ripe for abuse. [...]

  3. [...] While it remains to be seen how a Spanish court would react to Bitacle, E.U. copyright law is notoriously strict and it wouldn’t likely favor Bitacle. [...]

  4. [...] While it remains to be seen how a Spanish court would react to Bitacle, E.U. copyright law is notoriously strict and it wouldn’t likely favor Bitacle. [...]

  5. [...] what could have been a difficult copyright situation and made it very simple. However, with the rules for notice and takedown the in EU being so relaxed, one might say that Dailymotion is actually setting the bar too high. However, I would argue they [...]

  6. [...] to Fix: Most major Internet countries have similar laws on the book. The EU has the EDEC, which describes the takedown procedure that is used in most of its countries. However, in [...]