Problems of the Adoption of the Notice and Takedown Regime by Other Countries

-- By MunKiNam - 01 May 2010

The Notice and Takedown Regime in DMCA

Section 512 (c) of DMCA provides so called “Notice and Takedown” procedure, in which a copyright holder may request a service provider to take down a material posted on its website by a notice alleging such material infringes her copyright. If a service provider expeditiously removes or disables the access to such material, it is exempted from the liability related to such material.

Under this provision, service providers can rely on a safe harbor regarding the secondary liability on copyright infringement if they adopt and implement the notice and takedown procedure. In this regard, the notice and takedown provision can be assessed to enable so-called Web 2.0 services. Meanwhile, copyright holders can remove or disable to access to copyright infringing materials from the internet merely by unilateral notification to service providers without any judicial review. In consequence, the freedom of expression on the internet can be significantly impaired.

Adoption of the Notice and Takedown Regime by Other Countries

Despite the intrinsic problem of the notice and takedown regime, many other countries such as E.U. countries, Japan, Australia and South Korea have adopted the notice and takedown provisions similar to DMCA because they can deal with enormously increasing right infringement cases on the internet with an easy and efficient way. In addition, it is one of the reasons that the U.S. compelled other countries to adopt the notice and takedown regime in order to protect its globalized content industry. After the enactment of DMCA, the U.S. has inserted provisions in FTAs it executed with other countries, that required such other countries to establish the notice and takedown regime similar to DMCA in their legal system.

The problem is that, in many countries which adopted the notice and takedown regime, the scope of the application is extended to the online defamation matters. In contrast with the U.S. legal practice which exempts service providers from the secondary liability resulted from the defamatory materials posted by subscribers, See Section 230 of Communication Decency Act and Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the court in other countries applied the same principle in determining whether service providers are liable for defamatory materials posted by subscribers as applied to copyright infringement cases. Thus, if a country intends to adopt the notice and takedown procedure in its legal system, internet service industry in that country will strongly request the system to be applied to other right infringement cases as well as copyright infringement cases, and the government has no reason to refuse such a request. I think this is the main reason why other countries which adopt the notice and takedown system made the system applicable to defamation.

Problems Which Can Be Occurred When the Notice and Takedown Regime Is Applicable to Defamation

The notice and takedown regime has more possibilities to cause troubles regarding the freedom of expression in defamation cases than in copyright infringement cases. Most of the copyright infringements on the internet are related to the cases where subscribers upload copyrighted music, picture or movie files, but in these cases, even if service providers take materials down pursuant to the notices from copyright holders, it cannot be assessed as a threat to the freedom of expression. On the other hand, some cases, for example, where subscribers upload materials, such as parody, which criticize certain entities by quoting copyrighted works of other persons may cause trouble on the freedom of expression when copyright holders attempts to oppress the opposite opinions against them by raising copyright infringement issues. However, this kind of cases is rare compared with general copyright infringement cases, and these attempts are possible only if the criticized have the copyright on the works used in such materials. However, in most defamation cases the notice and takedown regime can be used as the most effective means to oppress the freedom of expression on the internet. It is possible in most cases for the criticized entities to give takedown notices to service providers alleging that criticizing materials tarnish their reputation. Therefore, if the notice and takedown procedure is allowed in defamation cases, powerful entities such as large companies or political authorities can have an easy way to take down materials that criticize their positions, and this results in fundamental impairment of the freedom of expression on the internet.

In other countries, it is more problematic. Unlike the U.S. law which requires actual malice in order for public officials to win defamation cases, most other countries have not developed a specific legal theory which limits defamation claims by public officials. Accordingly, in other countries, there are more defamation cases brought by public officials against persons who express critical opinions on government. If the takedown notice is allowed in this situation, the notice and takedown regime can be abused by the government to oppress the opinions of its opponents.

Conclusion

The notice and takedown regime originated from DMCA of the U.S. has expanded its influence on many other countries due to its efficiency and the effort of the countries, such as the U.S., which have strong content industry. Further, recently a negotiation is in the process in order to execute a multi-lateral trade agreement titled Anti-Counterfeiting Trade Agreement (ACTA) under the leadership of the U.S. and E.U., and its current draft has a provision that imposes an obligation to adopt the notice and takedown regime similar to DMCA on its member countries. If this agreement will be executed, the notice and takedown regime will expand worldwide. As discussed in the above, however, in case other countries adopt the notice and takedown regime, they tend to make it applicable to online defamation matters, and this will cause more significant problems than the U.S. Legislators in any countries which consider to adopt the notice and takedown regime must recognize these problems and be cautious about adopting the regime.

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