09 June, 2009
Taiwan Enacts ISP 'Safe Harbor' Amendments to Copyright Act
Taiwan has enacted long-debated copyright legislation establishing safe harbor provisions that Internet Service Providers (ISPs) may avail themselves of for copyright infringement by users. The “Internet Service Provider Liability Limitation” amendments to the Copyright Act, promulgated in May 2009, have been based largely upon the ISP liability limitation regime set out in the 1998 U.S. Digital Millennium Copyright Act (DMCA) Title II.
According to the International Intellectual Property Alliance, losses to the copyright industry from online piracy in Taiwan exceed US$230 million annually.1 Copyright industry groups have lobbied the government vigorously in recent years seeking greater ISP accountability for online infringement and effective, non-judicial means to combat infringement of copyrighted works online. The amendments reflect an attempt to reconcile the assumed losses by copyright holders from online infringement with the need to limit liability exposure for ISPs while protecting the rights of digital users.
Four types of ISPs have been identified and the scope of their services defined:
a. Connection service providers: those who provide services, by wire or wireless means, of transmitting, routing, or receiving, information through a system or network controlled or operated by the service provider, or of the intermediate and transient storage of information in the course of such transmitting, routing or receiving;
b. Caching service providers: those who, after information has been transmitted at the request of a user, provide services of intermediate and temporary storage of the information through a system or network controlled or operated by the service provider, for the purposes of providing accelerated access to the information by users who subsequently request transmission of the information;
c. Information storage service providers: those who provide information storage services at the request of a user through a system or network controlled or operated by the service provider; and
d. Search service providers: those who provide users with services, including an index, reference, or hyperlink, to search or hyperlink to online information.2
All ISPs must comply with the following general requirements to be eligible for the safe harbor from the infringement of copyright by their users:
a. adopt copyright protection measures and inform users of such measures;
b. adopt and inform users of a “three-strikes” policy whereby the services of repeatoffenders would be terminated in whole or in part;
c. make public the information about contact windows for receiving notices provided under this regime; and
d. implement technical measures to identify or protect copyrighted works that are provided by rights holders and have been approved by the competent authority. ISPs are not required to monitor content.
Additional requirements to qualify for safe harbor have been imposed on ISPs by type according to the nature of services provided:
a. Connection service providers: transmission of information must be initiated by or at the request of a user and carried out through and automated process without selection or modification of the transmitted material by the connection service provider.
b. Caching service providers: cached information must not be modified, and caching service providers must adhere to rules regarding the “refreshing” of cached information through an automated technical process. Caching service providers must also remove or disable access to allegedly infringing content in an expeditious manner upon notification by the rights holder of alleged infringement.
c. Information storage service providers: must have no knowledge of, nor directly receive financial benefit from, infringing activity by a user and should respond expeditiously to remove or disable access to allegedly infringing content upon notification by a copyright holder.
d. Search service providers: must have no knowledge of nor directly receive financial benefit from infringing activity by a user and should respond expeditiously to remove or disable access to allegedly infringing content upon notification by a copyright holder.
A notice/take down mechanism has been established for caching, information storage, and search service providers. Receipt of proper notification requires that the ISP remove or disable access to the allegedly infringing material in order to obtain “safe harbor” protection. A rights holder may provide notification of infringement to a connection service provider. The connection service provider may communicate that notification to the user to demonstrate its compliance with the aforementioned general requirements. ISPs need not make a substantive determination as to whether the activity cited in a notification from a rights holder constitutes infringement. The ISP must simply be satisfied upon a formal examination of the content of the notification of its validity and sufficiency. It should also be noted that failure by caching, information storage, and search service providers to remove allegedly infringing content upon notification does not necessarily make the ISP liable for infringement. A rights holder would still need to establish the general elements for tort liability - willful misconduct or negligence on the part of the ISP - and to do so to the satisfaction of a court.
The amendments provide users of information storage service providers with a mechanism to challenge the infringement notification. The safe harbor provisions require that information storage service providers inform an allegedly infringing user of its take down measures pursuant to a rights holder’s notice of alleged infringement. A user who believes he or she has been wrongly accused of infringement by a rights holder may submit counter-notification to the information storage service provider requesting restoration of the alleged infringing content. Upon receipt of a counter-notification, the information storage service provider must forward the notice to the copyright holder.
An information storage service provider will not be obligated to restore a user’s content if the copyright holder submits proof to the provider within ten days of receiving the counter-notification that civil or criminal action has been initiated. If the copyright holder fails to provide such proof then the information storage service provider must restore the content within 14 business days of forwarding the counter-notification to the rights holder.
ISPs must inform users that their service shall be terminated in whole or in part in the event that a user receives three notifications of infringement from copyright holders in order to qualify for safe harbor. A degree of protection, however, has also been set out to prevent the abuse of the notification system. The amendments impose civil liability on any party who intentionally or negligently files a false notification of infringement or a false counter-notification. This would check the over enthusiastic use of automated infringement notification systems sometimes seen in other jurisdictions. A rights holder should have sufficient and actual evidence of infringement at the time that the notification had been issued. It should also be noted that parties could also avail themselves of other protections and rights set out in the Criminal Code, Civil Code, other Acts in the event of actions taken as a result of false notifications. The amendments, however, afford ISPs protection.
ISP complying with requirements under the amendments to qualify for safe harbor or who act in good faith upon becoming aware of suspected infringement will not be liable to users for any actions taken.
The Taiwan Intellectual Property Office plans to hold further public hearings later in the year on the proposed regulations accompanying the amendments.
1IIPA 2009 Special 301 Report on Copyright Protection and Enforcement
2Taiwan Intellectual Property Office translation of draft partial amendments to the Copyright Act
For more information about this topic, please contact K. Mark Brown or Erik Chen.
