30 July, 2008
IP Office Overhauls Draft ISP Liability Bill
The Taiwan Intellectual Property Office (TIPO) announced in July 2008 substantial revisions to draft Copyright Act amendments issued in January of this year concerning the liability of internet service providers for copyright infringement by network users.
In the revised draft, the TIPO has not included previously proposed amendments to Article 88 and Article 90.5 of the act that expressly establish liability for parties (read “ISPs”) found to aid or abet copyright infringement or parties who were aware, or ought to have been aware, that a user has exploited their services to infringe the copyright of another. The TIPO has thereby indicated that existing provisions of the act and the Civil Code sufficiently establish liability with respect to ISPs.
With ISP liability generally established in this way, the revised draft amendments focus instead on workable notice/take down and safe harbor mechanisms for the four types of operators that would be subject to the ISP amendments: connection services, caching services, information storage services, and search tool services. Common requirements for obtaining safe harbor immunity from liability that are shared by all four types of ISP include:
- Adopting copyright protection measures and informing users of such measures by contract or other appropriate means, and
- Implementing filtering and content identification technologies provided by rights holders.
Immunity from third-party claims would also be afforded ISPs that have removed or disabled access to infringing content in response to a notice from a copyright owner.
The revised draft differs from the earlier version as well by establishing different safe harbor mechanisms for each of the four types of ISPs based on their unique characteristics. Of note, the revised draft stipulates that information storage service providers should immediately inform rights holders upon receipt of a counter notice to restore content removed. The information storage service provider is not obligated to restore content, however, if the rights holder provides proof within ten days of receiving the counter-notice that it has filed civil litigation for the alleged infringement. If proof has not been provided, the information storage service provider must restore content no later than fourteen days after informing the rights holder. This protocol does not apply to connection, caching and search tool service providers.
For more information about this topic, please contact K. Mark Brown or Erik Chen.
