In the past, solutions to emerging problems with the Copyright Act related to on-line use have been less effective than expected. The need for more effective regulations and border enforcement to stop on-line copyright infringement has become more important and more necessary than ever. The legal liability of internet service providers (ISPs) has been debated between the government and the ISPs over the past few years. According to the ISPs’, they merely provide web-users the equipment (conduit) to transmit the information. Thus, the ISPs fervently deny any legal liability when web-users infringe right holders’ copyright through their platforms.

Recognizing the importance of IPR protection, the government, introduced an amendment draft to stop the deterioration of on-line copyright protection and to seek mutually acceptable and effective methods for the ISPs, copyright owners and web-users.

On April 21, 2009, the Legislative Yuan of Taiwan passed the third reading on ISP Liability Limitation Bill providing a legitimate mechanism to moderate and deal with the long-held problems among the three parties, especially the related provisions for the limitation liability of the ISPs according to the provisions relating to notice-and-take-down.

“Notice-and-Take-Down” is a popular prevention mechanism widely adopted by many countries for the protection of on-line copyright and requires that a copyright owner issue a notice to the ISP of the allegedly infringing activities, and that the ISP immediately takes down the allegedly infringing content or related information from the internet.

However, if a copyright owner or a person intentionally or negligently submits a misrepresentatives statement to the ISP with in a notification or counter notification out of intention or negligence, the said person will be liable for damages or any injury incurreding to by the user other party or the ISP.

Hereunder we have summarized how the new bill will affect ISPs, copyright owners and web-users.

1. ISPs

According to the proposed ISPs bill, the ISPs should take down, or disables access to, the allegedly infringing content or related information upon notification by a copyright owner of the alleged infringement. The new bill stipulates that if the ISPs follow the Notice-and-Take-Down rules, they will be exempted both from civil liability to copyright owners and contractual liability to theweb-users. Such a so-called “Safe-Harbor” mechanism affords limited liability from alleged copyright infringement to the ISPs.

The new bill further provides that the ISPs should inform web-users by contract, electronic transmission, automatic detective system or other means that partial or complete termination of services would be carried out if they have three repeated alleged on-line copyright infringements. This Three Strikes Law effectively provides web-users a chance to correct their actions and avoid being sued for infringement.

2. Copyright owners

To date, in dealing with on-line copyright infringement, a copyright owner can seek legitimate protection from the judicial proceedings. However, when the new ISP bill is enacted, copyright owners will have one more method to protect their on-line copyright using the new ISP bill. The new ISP bill requires ISPs to immediately remove, or disable access to, the allegedly infringing content or related information upon notification by a copyright owner of the alleged infringement, which provides copyright owners a quick and effective method to protect their rights and prevent their copyrighted content or related information from being distributed.

3. Users

Those whoIf web-users illegally post, upload or use others’ copyrighted content via throughthe ISPsto transmit unauthorized content or related information,so engaging in infringing activities, would violate laws and, under the new ISPs bill, the ISPs should expeditiously remove, or disable access to,take down the allegedly infringing content or related information upon notification by a copyright owner of the alleged infringement.

In the new bill, the ISPscould be exempted from liability if they can prove that they had no knowledge of the alleged infringement and that they took adequate and suitable measures to prevent infringement. However, if the ISP fails to prevent copyright infringement within a reasonable time or to remove the alleged infringement from the internet, they cannot claim limited liability.

The on-line copyright protection provided in the new ISPs bill makes a crucial impact to against those who maliciously infringe others’ copyright through ISPs. We also believe that providing the ISPs with limited liability by enacting the new bill will substantially reduce on-line copyright infringement in Taiwan.

(Author:Yueh-Hsing SU is a legal assistant in the Tai E International Patent & Law Office. She has an LL.B degree from National Taiwan University and LL.M degree in the Division of Comparative Law of the Soochow University Law School.)