What do I need to do before deciding whether to send a Takedown Notice for Online Copyright Infringement [Australian Hosted Website]?

Australian Takedown Notice Checklist

1️⃣ Does the website hold a legally valid licence to use your copyrighted material?

Is it possible that your agent mistakenly issued a licence to use your copyright material on your behalf and failed to notify you?

✅ We recommend you always double-check by asking the website for a copy of its legally valid licence to use your copyright material (if they maintain they have one) before considering whether to issue a Takedown Notice.

2️⃣ Does a "fair dealing" exception apply?

Generally, use of your copyright material will be a "fair dealing" and not constitute an infringement of copyright if it can be classified as occurring for one of the following purposes:

✅ Research or study (refer below);

✅ Criticism or review;

✅ Parody or satire;

✅ Professional legal advice; or for

✅ Reporting the news.

Research or Study

The following additional factors are relevant in deciding whether the dealing for research or study purposes is fair:

⚖️ Purpose and character;

⚖️ Nature of the work;

⚖️ Possibility of obtaining work commercially;

⚖️ Effect of the dealing on the value of the work; and the

⚖️ Amount and substance copied relative to the whole (see table below).

Source: s.40 of the Copyright Act 1968 (Comm.)

3️⃣ If you are unsure whether a “fair dealing” exception will apply in your situation?

Always seek professional legal advice before sending a Takedown Notice especially if you are unsure regarding the application of the "fair dealing" exception.

4️⃣ Double-Check the details

You will need to double-check that you have provided sufficient information to enable the ISP's designated representative to take the required action to quickly identify + remove your copyright material:

For example

✅ The specific infringing URL(s); and

✅ A copy of your copyright material so that it can be easily identified.

If you don’t provide accurate information your Takedown Notice may not achieve the desired outcome + there will most likely be delays caused by requests for further + better information.

5️⃣ Send the Takedown Notice To the Internet Service Provider's (ISP) Designated Representative

The Internet Service Provider (ISP) will usually provide an email address for delivery of the notices.

If not, a hard copy of the Takedown Notice can be posted to the Internet Service Provider's (ISP) nominated address.

USA Hosted Website

For websites hosted in the USA a different process is applicable.

See DCMA Takedown Notice for Online Copyright Infringement.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.