Taiwan provides safe harbour for ISPs in copyright infringement cases

On 21st April 2009, in light of the increase in online copyright infringement in recent years, the Legislative Yuan completed the third and final reading of the Internet Service Provider (ISP) Liability Limitation Bill, which amends the Copyright Act to strengthen the protection of copyrighted materials on the Internet. The amendment has its origin in the US Digital Millennium Copyright Act of 1998 and the safe harbour practices adopted by other countries in the past decade.

In the past, in order to protect their copyrighted material against infringement on the Internet, copyright holders in Taiwan had to initiate a criminal prosecution with the prosecutor’s office or directly file a criminal or civil lawsuit with the courts. These procedures are time consuming and complex. The new provisions of the Copyright Act aim to provide copyright holders with a more efficient and convenient means of dealing with online copyright infringement in addition to conventional litigation procedures.

The new provisions put in place mechanisms whereby copyright holders may request ISPs quickly to remove unauthorised copyrighted materials on the Internet by taking the following steps: 

• The copyright holder first notifies the ISP of the unauthorised use of copyrighted materials on the Internet. 
• The ISP promptly takes down the alleged unauthorised copyrighted materials and related information and informs the alleged infringing internet user of such removal. 
• If the alleged infringing user objects to the removal of such materials, a counternotice can be sent to the ISP, which will relay such counternotice to the copyright holder. 
• Where, within 10 working days, the copyright holder provides evidence that prosecution against the alleged infringing user has been commenced, the ISP is not required to put the alleged copyrighted materials or related information back online. Where the copyright holder provides no such evidence within the prescribed period, the ISP must put back all original content and related information within 14 working days from the date when the counternotice was sent to the copyright holder.

These steps are commonly referred to as the "notice and takedown" mechanism. For an ISP to adopt the notice and takedown mechanism, it must first provide the users with prior notice of the "three strikes" policy through the contract, email or other means. The "three strikes" policy means that where a user has committed three alleged copyright infringements, the ISP will terminate its internet services. Under the safe harbour mechanism, an ISP which has adopted such mechanisms may be exempt from both civil liability to copyright holders for the alleged infringement and contractual liability to the allegedly infringing internet user.

The new provisions take into account internet users’ personal information and privacy. If after the alleged copyrighted materials are removed from the server, the alleged infringing user does not submit a counternotice to request the restoration of information, the ISP may not disclose the user’s personal information to the copyright holder. As such, if a user’s copyright violation is accidental, the notice and takedown mechanism gives the user a chance to correct its action and avoid an unnecessary lawsuit.

The safe harbour mechanism is not compulsory - the amendments do not require ISPs to adopt the notice and takedown provision and related mechanisms. If they opt in, in order to take advantage of the safe harbour, ISPs must, before providing their services, clearly inform users of the copyright protection measures that they adopt, and also inform users that partial or complete termination of internet services will be carried out if they have three repeated alleged infringements. In addition, ISPs must provide and announce a method of communication for the purpose of receiving notices and documentation, and implement the methods of protecting copyrighted materials. For those ISPs which choose not to opt in to the safe harbour, it will be for the courts to determine whether ISPs will bear civil responsibility for copyright infringement by users on a case-by-case basis.

The Taiwan Intellectual Property Office believes that the new amendments to the Copyright Act will create a win-win situation for copyright holders, ISPs and internet users. The aim is to achieve a more comprehensive online copyright protection environment and the implementation of the new mechanisms should deter the increasing number of online copyright infringemers.