The Executive Yuan Approved the Amendment to Copyright Act Regarding the Liabilities of ISPs in Online Copyright Infringement.

　Seeing that the raging online copyright infringement largely occurring on the service platforms provided by Internet service providers (ISPs) has been plaguing worldwide copyright protection to the extent where copyright right holders have been limited in attempts to take legal action against these cyberspace crimes, the Taiwan Intellectual Property Office (TIPO) drafted an amendment to the Copyright Act that specifies the liabilities of ISPs involved in online copyright infringement occurrences. To meet the demands of ISPs and copyright holders and also keep steps with actual ISP practices, TIPO had gone through a long process of studying related legislation of other countries, holding public hearings, talking with right holders and ISP representatives, and also consulting IPR experts before submitting the amendment to the Executive Yuan for review on August 27, 2008. The Executive Yuan approved the amendment on September 25, 2008.

　This proposed amendment includes the following major added components:

1.  Causes for exemption of ISPs’ liability
　According to Articles 28, 185, and 188 of the Civil Code, as well as Article 88 of the Copyright Act, ISPs shall be liable for joint infringement when a third party uses ISP facilities or services to commit infringement.  The amendment proposed “safe-harbor” provisions that make ISPs free from liabilities under the conditions specified in the amendment. 

2.  Creating a “notice/takedown” mechanism to curb the illegal online circulation of copyrighted material
　This amendment contains provisions for a “notice/takedown” mechanism which allows copyright right holders to notify ISPs of Internet users’ illegal use of copyrighted materials and request ISPs to remove the infringing materials.  By performing the legally required notice/takedown practice to timely remove the infringing materials, the ISPs can, in turn, apply for exemption from liability.  The “notice/takedown” mechanism is established to reduce possible infringements and disputes.

3.  Counter-notification mechanism proposed to protect Internet users’ rights
　In addition to the notice/takedown mechanism, the amendment also proposes a “counter-notification” clause whereby the alleged infringing user may claim no infringement being committed and send a written request to the ISPs to restore the removed materials and also hold the rights holder liable for damages, if any arising from the right holder’s mistaken takedown notice.

4.  ISPs will not be held liable to copyright right holders or users for removal of suspected infringing materials
　Taking no responsibility for determining the validity or authenticity of infringement claim of a takedown notice filed by copyright holders, ISPs shall have no liability for removing or restoring suspected infringing materials as long as they receive the initial takedown notice from the right holders or other forms of notification with respect to suspected infringement occurrence and then remove suspected infringing materials in good faith to this end.  The exemption provisions will encourage ISPs to comply with the notice/takedown mechanism as described above.

　This amendment is a consensus among the ISPs, Internet service users, and right holder groups through extensive and interactive negotiations.  Owing to the fact that there are wide varieties of Internet services to be used by multitudes of Internet service users, the legislation lags behind the online copyright infringement running wild, and it is unwise and unpractical to file lawsuits against copyright infringers.  As opposed to the long-drawn-out actions, the new mechanisms to be practiced by the ISPs as proposed in this amendment will be no doubt the direct and efficient ways to reinforce copyright protection and establish a sound legal regime for restraining online copyright theft. (2008.7)

/CCS