In view of the ever-growing impact of internet technology on copyright protection, the Taiwan Intellectual Property Office, by making reference to the relevant statutes in other jurisdictions, has prepared a draft amendment to the Copyright Act purported to define and limit the liabilities of internet service providers (ISPs), including providers of connection services, caching services, information storage services and search tool services.
Under the draft amendment, an ISP should be held liable for copyright infringement under the following circumstances: (1) it has knowledge or awareness of its users' or subscribers' infringing act and receives financial benefit directly attributable to such infringing act, and (2) it fails to prevent further damages from occurring while having the ability to monitor or control such an infringing act. However, an ISP could claim exemption from its liability if it has (1) informed its subscribers or users, by contract or through other appropriate means, about the affirmative copyright protective measures it has taken and its right to terminate service agreements in the event of repeated copyright infringement by subscribers or users; and (2) taken affirmative steps to implement the specified copyright protective measures or to fulfill its obligations as set out in the service agreements.
Moreover, if an ISP, after receiving a notification from a copyright holder to remove or disable access to any allegedly infringing content, has complied with the demand and notified its users or subscribers about the steps it has taken, its infringement liability shall be subject to exemption.
On the other hand, the notified user or subscriber may submit documents evidencing his or her right to lawfully exercise the concerned copyright and give counter-notification to the ISP. Upon receipt of such counter-notification, the ISP should immediately notify the copyright holder and proceed to restore the removed contents or resume access if the copyright holder fails to take a civil action within 10 days from receipt of the counter-notification from the ISP.
We will keep an eye on the legislative progress of the revised Copyright Act. It remains to be seen the exact nature of the limitation of the liability imposed upon ISPs and the circumstances in which it applies.
Amanda YS Liu
Saint Island International Patent & Law Offices
7th Floor, No.248, Section 3
Nanking East Road
Taipei 105-45
Taiwan, R.O.C.
Tel: +886 2 2775 1823
Fax: +886 2 2731 6377
siiplo@mail.saint-island.com.tw
www.saint-island.com.tw
