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Photographers Copyright and Take Down Notices What you can do if someone puts your photos on the internet.Copyright protection.In Australia, copyright protection is set out in the Copyright Act 1968 (Cth). In Australia, copyright protection is free and automatic. (You don’t need to do anything. No notice or procedure is required.)A photograph is protected by copyright automatically from the moment it is taken. The copyright notice or insignia - ? - while not required for protection, does notify people that the work is protected and identifies the person claiming the rights. Copyright owners can put the notice on their work themselves – the notice consists of the symbol ?, followed by the name of the copyright owner and the year the photograph was taken or published e.g. ?Priscilla Paparazzi 2019.What can you do if you are the owner?If you are the owner of copyright in photos you have the exclusive right to reproduce photos, publish the photos, and communicate the photos to the public (for example by putting the photos onto a website or to email digital files of the photos). Who is the owner?For photos, usually, the photographer is the first owner of copyright unless there is an agreement to the contrary. However, if there is an agreement and a person pays a photographer to take photos, the usual rule of ownership will depend upon the purpose for which the photos were taken.If the photos were taken for “private or domestic purposes” including family photos, baby photos, wedding photos etc, the first owner of copyright in them is the client unless your contract with the client specifies otherwise.If they were taken for any other purpose, specifically commercial shots, the photographer will be the first owner of the copy right again unless the agreement you have with the client specifies otherwise. What can you do if someone breaches your copyright by publishing your photos on the internet?If you are the copyright owner of photographs and someone has breached your copyright by publishing your photos on the internet, you may wish for it to be removed or taken down from the internet. If this is the case, you can issue a notice to the internet service provider (ISP) to remove or disable access to your photographs. The notice is called a ‘Take Down Notice’. It is set out in Schedule 10 of the Copyright Regulations 1969.The Take Down Notice is a notice of infringement to the ISP designated representative. The notice can be sent to the ISP which you have identified as hosting the website on which your photographs are located. Once the ISP (or its designated representative) receives a Take Down Notice and becomes aware that the material/photographs are infringing copyright, they must act promptly to remove or disable access to the photographs.The Telecommunications Act 1997 and copyright regulations actually refer to a ‘carriage service provider’. This is the same as an ‘internet service provider’. The Copyright Act contains “safe harbour” provisions which afford protection to ISPs who provide internet and network facilities so that they are not held responsible for copyright infringement by users of their facilities so long as the ISP is not actually involved in the infringing activity. While protected by these “safe harbour” provisions the ISP must act promptly to remove or disable access to copyright material located on its network when it becomes aware that the material is infringing i.e. when the copyright owner delivers a Take Down Notice to the ISP. What is the First Step?Often people are not even aware they are breaching copyright so as a preliminary or first step you could contact the website and request they remove the infringing material/photographs. If your request is not complied with, then you can consider sending a Take Down Notice. Things to carefully consider.Prior to sending your Take Down Notice you should consider whether or not the user has a valid reason to use the photo. It is good to ask the question: “does the website hold a valid license to use the photograph in question?” The Copyright Act lists a number of circumstances where someone is justified in using your work without your consent. Some examples include: where it can be classified as occurring for the purpose of research or study, criticism or review, parody or satire, giving professional legal advice or for the reporting of news. (Under Australian law there are “fair dealing” exceptions.)It is very important that you are aware –If you issue a Take Down Notice and the user/publisher can prove that your Notice was unfounded you may be liable for damages and other civil penalties. This is why it is important to chat with a lawyer before issuing a Notice.The effect of a Take Down Notice.If the Notice is justified, it requires the ISP to remove or block access to your photos (the infringing material). This protects your photographs (intellectual property). So, if the user does not have a valid reason to post the material then it will be permanently removed. Issuing a Take Down Notice.To issue a Take Down Notice you will have to identify which organisation is hosting the infringing website. There are free services on the internet that will assist you in doing this. Where a website is hosted on a computer server located in Australia you need to search the organisations website to identify the “designated representative.” This person is authorised to receive notices.Each internet service provider is required by law to appoint a person to act in this capacity to receive Take Down Notices. The ISP will generally provide an email address for the delivery of notices. It is very important to be specific about the photos/material you believe are infringing your copyright.Upon receiving the notice, the ISP must promptly remove or disable access to the copyright material. What if your Notice is Disputed?The person who has infringed your copyright is entitled to issue a Counter Notice if they dispute the fact that the material is infringing. If this occurs, then the ISP must restore or enable access to the copyright material on its network. This means that you as a copyright owner would need to issue legal proceedings if you wish to pursue the matter further. If you consider doing this, you must give notice within 10 working days of receiving the Counter Notice that you have commenced an action seeking a Court order (injunction) to restrain the activity. Below is a link to the Australian Artslaw website which provides further information and is very helpful for filling out notices. example Take Down Notice is set out below.Example Take Down NoticePart 3 - Form of notice of claimed infringement by owner or agent-copyright materialCopyright Regulations 1969NOTICE OF CLAIMED INFRINGEMENT OF COPYRIGHT BY COPYRIGHT OWNER OR AGENT - COPYRIGHT MATERIALTO [name of carriage service provider]1. I, the person whose name is stated below, issue this notice for the purposes of condition 3 of item 4 of the table in subsection 116AH(1) of the Copyright Act 1968 and regulation 20I of the Copyright Regulations 1969.2. I am the [owner/agent] of the owner of the copyright in the copyright material specified in the Schedule (the specified copyright material), being copyright material residing on your system or network.[Omit the following paragraph if this notice is being completed by the agent of the copyright owner.]3. I believe, in good faith, that the storage of the specified copyright material on your system or network is not authorised by me or a licensee, or the Copyright Act 1968, and is therefore an infringement of the copyright in that material.[Omit the following paragraph if this notice is being completed by the copyright owner.]3. I believe, in good faith, that the storage of the specified copyright material on your system or network is not authorised by the copyright owner or a licensee of the copyright owner, or the Copyright Act 1968, and is therefore an infringement of the copyright in that material.4. I have taken reasonable steps to ensure that the information and statements in this notice are accurate.NAME OF [OWNER/AGENT] OF OWNER:ADDRESS:TELEPHONE NUMBER:FAX NUMBER:E-MAIL ADDRESS:SIGNATURE [Owner/Agent of owner]SCHEDULEDESCRIPTION OF COPYRIGHT MATERIAL: [insert sufficient information to enable the service provider to identify the copyright material in respect of which the infringement is claimed]LOCATION OF COPYRIGHT MATERIAL RESIDING ON CARRIAGE SERVICE PROVIDER'S SYSTEM: [insert sufficient information to enable the service provider to locate on its system or network the copyright material in respect of which the infringement is claimed]What if your photo is used on and American website?Increasingly, Australian artists including photographers find that their copyright has been breached by a website hosted overseas, for example America. The Digital Millennium Copyright Act (DMCA) is the relevant USA legislation setting out their Take Down Notice procedure. Under the DMCA there is no set form of notice. However, you must ensure you are specific, complete and accurate when outlining information otherwise it will be rejected. In the USA the “designated representative” is referred to as the copyright agent. Like in Australia, you will need to identify the copyright agent and serve the Notice on them. Here is a link to a US website than can step you through DCMA Take Down Notices. is a general information sheet. Prior to issuing a Take Down Notice it is a good idea to chat with a lawyer to get specific legal advice in relation to your particular circumstances. Ivan Baxter – Director – O’SheaDyer Solicitors – Townsville - May 2019. ................
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