“According to a PC World article, Google has submitted a brief to New Zealand about its proposed copyright law (section 92A). “In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.””
I find these numbers rather alarming. If accurate, they demonstrate a serious need to reconsider the true effectiveness of notice and takedown procedures. As a mechanism, these procedures were devised as a way to manage potential and threatened copyright infringement suits. But as we have seen elsewhere in the copyright environment, the ability to make assertions of infringement can be and often is abused. Right holders have been known to make assertions of copyright infringement when users were in fact acting within their fair dealing or fair use exception rights. But I find the abuse of notice and takedown procedures even more concerning because it is not just rights holders making incorrect claims of infringment.
In Australia, s202 Copyright Act 1968 provides:
Groundless threats of legal proceedings in relation to copyright infringement
(1) Where a person, by means of circulars, advertisements or otherwise, threatens a person with an action or proceeding in respect of an infringement of copyright, then, whether the person making the threats is or is not the owner of the copyright or an exclusive licensee, a person aggrieved may bring an action against the first‑mentioned person and may obtain a declaration to the effect that the threats are unjustifiable, and an injunction against the continuance of the threats, and may recover such damages (if any) as he or she has sustained, unless the first‑mentioned person satisfies the court that the acts in respect of which the action or proceeding was threatened constituted, or, if done, would constitute, an infringement of copyright.
My question is – is this enough to protect from groundless takedown notices? I think it would depend on the language of the notice, especially since s202(2) provides: “The mere notification of the existence of a copyright does not constitute a threat of an action or proceeding within the meaning of this section.” Not to mention that the procedure for actually exercising the rights granted by s202(1) is quite expensive. I think this is an issue that our courts and legislature should give serious consideration to. The purpose of copyright law is to facilitate innovation, not to stifle it.