Copyright Infringement Clauses

If you are publishing content on your website or blog, you (or the creator) are the author of this work. When you have authorship over that content, you have rights about how that work can be shared, used or copied. These rights are called "copyright."

In this article we'll look at what copyright is, what a copyright infringement clause is, why you need one in your Terms of Use or EULA, and what these clauses should contain.

What is Copyright?

Copyright is a legal right that you gain when you create a piece of original work, such as a blog post, website copy, a story, a piece of music, or a video.

In most jurisdictions, you get copyright automatically. You don't have to apply for anything or file anything to have copyright in a piece of work that you have done. However, proving that you have copyright, and protecting it, is another story.

In some places you can register a work such as through the U.S. Copyright Office, or in the EU there are private providers who can register the date and description of your copyrighted work.

You can also attach a "copyright notice" to your work, such as the copyright (c) symbol. This is also where copyright infringement clauses come in.

What are Copyright Infringement Clauses?

A copyright infringement clause is a statement in a legal document that clarifies your copyright in the work, and describes what will happen if your rights are breached (e.g. if someone steals your writing or art). It may also cover licensing permissions, such as ways in which you do allow your work to be used.

This can also apply to situations in which your website deals with user-generated content. In these cases, you may have a clause that explains how you deal with the original content created by them (which they have copyright over), and what licenses apply.

Why Do You Need a Copyright Infringement Clause?

You need a copyright infringement clause to protect the copyright in your own works as well as to inform your users of what happens if they breach your copyright.

You also need a clause to explain the licensing for content generated by your users, and let them know what to do if their copyrighted work has appeared on your website without permission (e.g. a DMCA takedown request).

We'll look each of these different examples below:

• Establishing your own copyright: Clauses for establishing your own copyright outline what material you have copyright in. They also set out what uses of your copyright are allowed and not allowed. This makes it clear to your users what they can do, and what they might get into trouble for.
• Explaining consequences for infringement: Clauses that outline the consequences should make it clear to your users that copyright infringement will be prosecuted. In some jurisdictions penalties are civil, while in others they come under criminal law (or both). Make sure your users know that copyright infringement is taken seriously.
• Licensing user-generated content: If your users can upload content to your website, you’ll need to make sure you have a clause to protect you from infringing their copyright. This clause should establish a license to use their content for your website or app, and make it clear how you will provide credit, whether you will pay for their content, and what they can do if they don’t want you to use their content anymore.
• DMCA takedown request: Sometimes, someone else’s copyrighted material could be uploaded to your website or app without your knowledge. In situations like this, you could receive a DMCA takedown request. A clause for these purposes makes sure that you have a process in place to deal with the request, so that your website isn’t enabling copyright infringement of someone else’s content.

Each of these situations requires a different type of clause, which is why it can sometimes get so confusing when you look at a set of Terms and Conditions or Terms of Use. Drafting these doesn't have to be complicated, however.

Let's get started.

How Do You Draft a Copyright Infringement Clause?

How you draft your copyright infringement clause differs depending on what its purpose is. Let's look at some main purposes, and the specific guidance for each.

When Establishing Your Own Copyright

When you are setting up a copyright infringement clause to explain the limits and coverage of your own copyright, the clause will need to contain information on:

• What type of content you own copyright in
• What types of action with the material are allowed or not allowed (e.g. copying, adapting, sharing), including social media, inline content or other online uses
• Commercial vs non-commercial use, or "fair use"

Let's take a look at some examples of each of those.

What Type of Content You Have Copyright In

First, this clause from IFC shows a statement simply saying that "all content developed or acquired by us" is owned by IFC. Many websites use broad statements like this to refer to content that is protected by copyright:

You can also use a broad statement like this referring to all content on your website or in your app that is "developed by you," for example, and exclude third-party or user-generated content.

You can also see this clause from Gutenberg Market notes their intellectual property extends to design, logos, trademarks, trade names and "other intellectual property." It also clearly specifies that author content on the website belongs to authors:

Here, the clause has specified "all content" that would be covered by copyright, and then explains other types of content such as designs or logos, which would usually be covered by trademark law, another type of intellectual property.

What Actions are Allowed

In the example from Rigby and Rigby below, you can see that the clause is more specific, referring to "each document and drawing" and claiming authorship in that. If you have specific types of content on your website or app that you want to be clear about, you can list these in your clause as in this example:

In the clause from Rigby and Rigby you can also see what uses of the content are not allowed. You can also list these in your copyright infringement clause.

Here, it specifies copying, distributing copies, lending, renting, or adapting content.

The Lever Frame example below also lists other uses that are prohibited, including uploading, posting, or transmitting:

In the example from Lever Frame you can also see that it specifically allows the download of one copy of their materials for personal, non-commercial use. If you want to tell your users what uses are permitted (to make it clear to them), this is a good example of how you can do this.

The Lever Frame example also notes the use of "inline links." This is when other websites can create links to Lever Frame content that display the content directly on the other website's page. If you have a type of content such as videos or images that could be displayed as inline content elsewhere, this aspect of the clause would also be important to include.

Fair Use and Permitted Uses

Finally, the Thermomix example below contains some explanations of what it considers "fair use." This is similar to the Lever Frame example in which it notes what uses are permitted:

Here, Thermomix recognizes that people download recipes, copy them, and scan them to use them for cooking things. If you have a particular type of content on your website or app that is likely to be downloaded for its use to be fulfilled, you can also explain this in your copyright infringement clause.

Approaches like this make it very clear what is covered by copyright, and what is permitted. This includes what content is covered, what uses are prohibited, and what uses are allowed.

Now let's take a look at what you need to include if you are drafting a clause relating to the infringement consequences.

When Explaining Consequences for Copyright Infringement

When you are outlining the consequences for copyright infringement, the clause will need to contain information on the following:

• That non-permitted use is an infringement
• That you will take legal action
• Cases in which legal action will be taken

Let's take a look at some examples of each of those.

Statement of Infringement

First, Belbin includes a clause on copyright infringement on its page, as well as a large FAQ of commonly-asked questions about how to use their content. In the example below you can see that it clearly states that reproduction or modification of their inventory (a questionnaire) is an infringement of their copyright:

If you are likely to take legal action in response to copyright infringement, telling this to your users directly can help them to understand that these things are taken seriously. If you have complex materials or things that are likely to be copied on your website, taking a look at Belbin's FAQ might help you to understand how to approach this with your users in an easy-to-read and clear way.

Your clause can provide the legal language, but providing extra information on your website if copyright issues come up frequently, can also be helpful.

Intention to Take Legal Action

In the example from Belbin above, it also clearly states legal action will be taken, and that legal actions have been successful in the past.

This example from Hansaplast also makes it very clear that breach of copyright is not permitted, and indicates legal action will be taken. It also states in the clause that infringement may have both civil and criminal law consequences.

In the United States, for example, copyright infringement can have both civil and criminal penalties. This depends on whether the infringement has taken place for financial gain or not. For simple copyright infringement, such as copying or distributing but not for financial gain, civil law penalties would apply. If a user copied something and made money out of it, this would result in criminal penalties.

Your clause should specify which type of penalties will be applied if a user infringes your copyright. In Germany, for example, infringement of copyright is also a criminal act.

When Legal Action Will Be Taken

Finally, in this example from the Costs Lawyer Standards Board, you can see that it clearly states that action will be taken in certain cases, and outlines which cases are most likely to result in problems:

In the image above it states legal action is more likely if the infringement is for "commercial gain" or is "defamatory."

Including things like this in your clause also lets your users know that you are serious about these issues and will pursue a consequence if they infringe your rights.

Now let's take a look at the situation in which you have user-generated content on your website. In these cases, you'll need to outline how you license their work, i.e. which rights they maintain, and what rights you have to use their content.

When Licensing User-Generated Content

If you are drafting a copyright infringement clause to make sure that you are appropriately licensing user-generated content, you'll need to cover:

• What rights the users grant to the company
• Who gains the ownership of combined works
• Attribution or recognition of the owner of user-generated works

These clauses are important to make sure that you have clearly established the right permissions to use someone else's copyrighted works.

Let's take a look.

What Rights are Granted

In this example from FIAT below, it clearly states which uses are granted to the company, including displaying the content in original or edited form, including on social media and other websites. It also states that this right lasts indefinitely, although it can be cancelled by contacting the company.

It also states that the license is non-exclusive, and that users retain their own rights to use their content. Establishing these details clearly is an important part of a copyright clause when you are determining what rights you will claim to anyone else's content that has been uploaded to your website or app:

In this example from Palgrave, a much broader statement is used, simply saying that users retain "ownership in any copyright" in content uploaded to the website. The clause doesn't outline which uses are permitted, or any licensing thereof:

Instead, Palgrave includes this information in another clause, with far more details about how user-generated content is dealt with. You can see in the clause below that Palgrave establishes a broad license to use work from users.

This is one approach that many companies use: separating the clauses out. You should make sure that you refer within your Terms of Use to other relevant clauses, however. For example, in clause 8 above from Palgrave, it would be better if it stated "Any licenses granted are outlined in clause 6." This helps users to navigate through the Terms of Use if clauses related to intellectual property are split up into pieces:

In the following clause, it also specifies with a lot of detail the permitted uses of user-generated content by Palgrave, including publishing content, removing content, using it to promote products and services, reproducing things, publishing similar apps, or modifying content:

Think carefully about how you are likely to make use of user-generated content, and whether you will need to establish a license for all of these things. Think about any edge cases or rare situations in which you still would need a license: forgetting something and using someone else's content for it anyway could leave you open to copyright infringement claims yourself.

The Use of Combined Works

If you are likely to use combined works or create products made of your content and user-generated content, you may need a copyright clause similar to this one from Chef One Foods.

This outlines which licenses are granted, and the permitted uses of user-generated content, including when modified or used for products or services that the company will make:

Here, it states that Chef One Foods will try to recognise users for the content and provide some kind of attribution, but that there is no requirement to do so.

Also note that it clearly states that no payment or compensation will be given for user-generated content. This is another part that is important to include in your clause, to avoid liability for payment towards user-generated content that you may use for your own purposes.

Attribution Rights

In this example from Creative Commons, you can also see how content can be licensed with a particular attribution. This would apply when you use user-generated content that a user has copyright in, and you want to give them credit for their work:

In this clause, Creative Commons notes that an "Attribution 4.0 License" is applied to any user-generated content used on the Creative Commons website. This license requires that the user is given attribution or credit for their work, e.g. with providing their name or a link to their website to show the work is theirs.

You can include similar terms to make it clear when user-generated content should give credit to the original creator.

Now let's take a look at DMCA requests, for situations in which your website has inadvertently hosted the copyrighted material of someone else, and they have made a request to have that content removed.

DMCA Takedown Requests

DMCA takedown requests can be covered in a clause that explains your process, and should include the following parts:

• Who can make a DMCA takedown request
• What is required to claim copyright and make a takedown request
• Who can be contacted and what happens after the takedown request is made

Let's take a look at some examples of each of those.

Who Can Make a DMCA Request

A DMCA takedown request can be made by a person who owns the copyright in material that has been posted without permission on another website. However, the person does not have to have a registered copyright in the content for a DMCA request to be made.

Here's an example from Apple that explains the start of the process:

You can see above that Apple states that it is an "online service provider" (OSP) for DMCA purposes. The DMCA applies to ISPs (internet service providers) as well as OSPs, which includes websites and applications that could host potentially infringing content.

You can tell your users at the beginning of the clause that they can make a request if they own the content, and that you will deal with their request.

What Information is Necessary

For a DMCA takedown request to be valid, the user needs to provide you with certain information that relates to the copyrighted content. You need to outline this information in the clause so your users provide you with the correct details.

Midphase lists here in the clause below what is required:

This includes:

• The signature of the copyright owner or person acting on their behalf
• A description of the copyrighted material
• Where the infringing material is found on the site so that the ISP or OSP can locate it
• The address of the person making the request
• A statement saying that there is a "good faith belief" that the use of the material is not authorized
• A statement that the information in the notice is accurate, and that the person is able to act on the copyright owner's behalf (if not the copyright owner themselves)

By providing this information, your users or anyone wanting to make a request to your site, will know clearly what they need to provide.

DMCA Agent Information and Process

Finally, you need to include information in your clause about your DMCA agent, which is the person who should be contacted for these takedown requests. The clause from NAMM below shows how this can be done:

Also note that NAMM outlines what will happen as part of the process after the request is made. This is good practice for your users to know what will happen next, and which of their provided information will be forwarded.

When you receive a DMCA takedown notice, you must act quickly to remove the material or disable access to it, and notify the user who originally uploaded the material. Counter-notices can also be submitted if the uploading user believes a mistake was made.

Summary

Copyright infringement clauses can serve a number of different purposes, and intellectual property law on the internet can become quite complex, particularly with user-generated content on websites and on apps.

Make sure that your clause is fit-for-purpose, whether your intention is to protect your own copyright, establish legal consequences, license user-generated content, or provide a process for DMCA takedown requests. With clear copyright infringement clauses on each of these points, where relevant, you'll be able to protect your legal rights, your users rights, and ensure you don't infringe upon others.