WILMap: Taiwan


LEGISLATION

Copyright Act, as amended on January 22, 2014
 
[(1Intermediary Liability of Copyright Infringement. The inducement liability of copyright infringement was enacted in 2007 under the influence of the U.S. Supreme Court’s decision, MGM v. Grokster, 545 U.S. 913 (2005). However, there is a critical difference between them with regard to the requirement of the resulting acts of infringement by a third party. In Grokster, the court holds that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” However, according to the subparagraph 7 of paragraph 1, article 87 of Taiwan’s Copyright Act, the intermediary’s behavior of enabling copyright infringement itself can be deemed an infringement of copyright under certain circumstances. In other words, a resulting act of copyright infringement by a third party is not a required element of the inducement liability in Taiwan’s Copyright Act. The view is supported by the legislative document of the enactment, which states that the amendment is to prohibit the behavior of inducing copyright infringement.
 
  • Article 87. Any of the following circumstances, except as otherwise provided under this Act, shall be deemed an infringement of copyright or plate rights: [ . . . ] 7. To provide to the public computer programs or other technology that can be used to publicly transmit or reproduce works, with the intent to allow the public to infringe economic rights by means of public transmission or reproduction by means of the Internet of the works of another, without the consent of or a license from the economic rights holder, and to receive benefit therefrom. A person who undertakes the actions set out in subparagraph 7 above shall be deemed to have "intent" pursuant to that subparagraph when the advertising or other active measures employed by the person instigates, solicits, incites, or persuades the public to use the computer program or other technology provided by that person for the purpose of infringing upon the economic rights of others. 
  • Article 91 to  93 provide the relevant penalties for copyright infringement. In particular, Article 93 states that a sentence of up to two years imprisonment or detention shall be imposed, or in lieu thereof or in addition thereto, a fine of not more than five hundred thousand New Taiwan Dollars for the violation of subparagraph 7 of paragraph 1 of Article 87.
 
(2) Limitations on Civil Liability for Internet Service Providers (ChapterVI-1). The limitations on civil liability for Internet service providers were enacted during 2009 in Taiwan. They largely follow the framework of section 512 of DMCA. The internet service providers are divided into four categories -- connection service providers, caching service providers, information storage service providers, and search service providers – with different conditions of eligibility of limitation on liability.
 
  • Article 90-5. A connection service provider shall not be liable for damages for infringement of the copyright or plate rights of another by a user of its service if— 1. the transmission of the information was initiated by or at the request of the user; and 2. the transmission, routing, provision of connections, or storage is carried out through an automatic technical process, without any selection of the material or modification of its content by the connection service provider.
  • Article 90-6. A caching service provider shall not be liable for damages for infringement of the copyright or plate rights of another by a user of its service if— 1. the service provider does not make any modification to the cached information; 2. when the person who made the original information available subsequently update, deletes, or blocks access to it, the cached information is done in the same way as a result of an automatic technical process; and 3. the service provider responds expeditiously to remove, or disable access to, the allegedly infringing content or related information upon notification by a copyright holder or plate rights holder of the alleged infringement by the user of the service provider.
  • Article 90-7. An information storage service provider shall not be liable for damages for infringement of the copyright or plate rights of another by a user of its service if the service provider— 1. does not have knowledge of the allegedly infringing activity of the user; 2. does not receive a financial benefit directly attributable to the infringing activity of the user; and 3. responds expeditiously to remove, or disable access to, the allegedly infringing content or related information upon notification by a copyright holder or plate rights holder of the alleged infringement by the user of the service provider.
  • Article 90-8. A search service provider shall not be liable for damages for infringement of the copyright or plate rights of another by a user of its service if the service provider— 1. does not have knowledge that the searched or linked information may be infringing; 2. does not receive a financial benefit directly attributable to the infringing activity of the user; and 3. responds expeditiously to remove, or disable access to, the allegedly infringing content or related information upon notification by a copyright holder or plate rights holder of the alleged infringement by the user of the service provider.
 
In addition, all the internet service providers need to meet the requirements of article 90-4 in order to be eligible for the limitations on liability.
 
  • Article 90-4. An Internet service provider shall be entitled to the application of Article 90sexies to Article 90novies regarding the limitation on liability only if the service provider— 1. by contract, electronic transmission, automatic detective system or other means, informs users of its copyright or plate right protection policy, and takes concrete action to implement it; and 2. by contract, electronic transmission, automatic detective system or other means, informs users that in the event of repeat alleged infringements up to three times the service provider shall terminate the service in whole or in part; and 3. publicly announces information regarding its contact window for receipt of notification documents. 4. accommodate and implement the technical measure described in paragraph 3. A connection service provider that, after receiving notification by a copyright holder or plate rights holder of alleged infringement by a user, has forwarded the notification to that particular user by electronic mail is deemed to have met the requirement in the preceding paragraph, subparagraph 1. If a copyright holder or plate rights holder has provided technical measures which have been developed based on a broad consensus and are used to identify or protect copyrighted or plate-righted works, the Internet service provider shall accommodate and implement the measures if the technical measures has been ratified by the competent authority.
 
With respect to information storage service providers, there are provisions for notice and takedown (Article 90-10).
 
  • Article 90-9. An information storage service provider shall forward notice to the allegedly infringing user of any measures taken under Article 90octies, subparagraph 3, by the contact method stipulated between the service provider and the user or by the contact information left by the user. However, this requirement shall not apply if the nature of the service provided makes such notice impossible. If a user referred to in the preceding paragraph believes that the materials were not involved in infringement, the user may submit counter notification documents to the information storage service provider with a request to restore the removed content or related information or restore the access to it. Upon receipt of a counter notification described in the preceding paragraph, an information storage service provider shall expeditiously forward such documents to the copyright holder or plate rights holder. If, within 10 business days since one day after the date of receiving counter notification from the information storage service provider as described in the preceding paragraph, the copyright holder or plate rights holder provides the information storage service provider with evidence regarding filing civil or criminal litigation against the user, the information storage service provider shall not bear any obligation to restore the content or related information. If the copyright holder or plate rights holder fails to provide evidence on filing litigation in accordance with the preceding paragraph, the information storage service provider shall, within no more than 14 business days since one day after the date of forwarding the counter-notification documents, restore the removed content or related information or restore the access to it. However, if restoration is impossible, the service provider shall notify the user in advance, or provide another appropriate method by which the user may restore it.
  • Article 90-10. An Internet service provider shall not be liable for damages to the allegedly infringing user if the service provider— 1. removes, or disables access to, the allegedly infringing content or related information in accordance with Articles 90septies to 90novies; or 2. upon obtaining knowledge of suspected infringement by the user, acts in good faith belief to remove, or disable access to, the allegedly infringing content or related information.
  • Article 90-11. A person who misrepresents an Internet service provider with a notification or counter notification out of intention or negligence shall be liable for damages for any injury incurred on the user, copyright holder, plate right holder or Internet Service Provider.
  • Article 90-12. The information in connection with the public announcement of the contact window under Article 90quinquies, and the content of the notification and counter notification, required particulars, supplementation or correction, and other requisite matters under Articles 90septies through 90decies shall be prescribe by the competent authority.
 
Because the amendment in 2009 only refers to the limitations on civil liability for Internet service providers in its title, it is not clear the limitation also applies to criminal liability. The question is very important in the context of Taiwan since most copyright cases in Taiwan are litigated through criminal proceedings. Currently, according to the Taiwan Intellectual Property Office, the limitation also applies to criminal liability because it deems that once an intermediary follow the notice and takedown procedure, it has no intention in infringing copyright and hence cannot be convicted of infringing copyright.]
 
(3) Three-strikes Law. Article 90-4(2) (see above), the so-called three-strikes law, stipulates that an Internet service provider is entitled to limitation on civil liability only if it informs users that in the event of repeated alleged infringement up to three times, it shall terminate the service. However, unlike paragraph 1, which requires Internet service providers “to take concrete action to implement it,” paragraph 3 has no equivalent requirement. Arguably, an Internet service provider may be entitled to the limitation on liability simply by informing users of the consequence of repeated alleged infringements—by contract, electronic transmission or other means—without actually terminating the service.]  
 
Criminal Code, as amended on January 15, 2014
 
[Joint Criminal Enterprise Liability and Aiding LiabilityArticle 15. A person who has a legal obligation and is able to prevent the results of the occurrence of an offense but has failed to do so shall be equal to have caused the occurrence of the result by his positive act. If a conduct of a person causes the danger of producing the result of an offense, the person has a legal obligation to prevent the occurrence of the result. Article 28. Each of the two or more persons acting jointly in the commission of an offense is a principal offender. Article 29 A person who aids another in the commission of a crime is an accessory notwithstanding that the person aided does not know of the assistance.]

BILLS AND PENDING PROPOSALS

[A telecommunications enterprise is required to remove content if an "administrative agency" (not a court) in authority deems that the content violate a law or regulation, such as copyright or defamation law, and the removal is technically possible (paragraph 2 of article 9). The bill was temporally shelved in 2013 due to the controversy, but it is likely the bill will be sent to the Legislature Yuan again with some revision in the future.]
 
Taiwan Intellectual Property Office (TIPO) Bill [TIPO's Press Release]
[There was a controversial SOPA-like bill proposed by Taiwan Intellectual Property Office (TIPO) last year, which authorized TIPO to block websites from other jurisdictions if it deems the role of website in contributing copyright infringement is "obvious." The bill was withdrawn due the severe opposition from online communities and significant coverage in media.] 

DECISIONS

Intellectual Property Court, Year 2010, Sin-Tsu-Shan-Yi-Tsu  No. 52, Criminal Case (智慧財產法院99年度刑智上易字第52號刑事判決)
[inducement liability, peer-to-peer, file sharing, Foxy, joint copyright infringement]
 
[After the enactment of inducement liability of copyright infringement, one important cases of peer-to-peer file sharing services was decided on the ground of inducement liability. This case involved a program called Foxy,  which was very popular in Taiwan for few years. The defendant was found guilty in co-perpetration of joint copyright infringement of article 92 and the inducement of copyright infringement of paragraph 4, article 93 of Taiwan’s Copyright Act.]
 
Intellectual Property Court, Year 2010, Sin-Tsu-Shan-Yi-Tsu  No. 59, Criminal Case (智慧財產法院99年度刑智上易字第59號刑事判決)
[inducement liability, peer-to-peer, file sharing, Kupeer, joint copyright infringement]
 
[Another case of peer-to-peer file sharing services involving a less known program called Kupeer was also decided on the ground of inducement liability.  The defendant was found guilty in co-perpetration of joint copyright infringement of article 92 and the inducement of copyright infringement of paragraph 4, article 93 of Taiwan’s Copyright Act.]
 
Intellectual Property Court, Year 2010, Xing-Zhi-Shang-Geng-(II), NO.24, Criminal Case [智慧財產法院99年度刑智上更(二)第24號刑事判決] 
[joint criminal enterprise liability, aiding criminal liability, peer-to-peer, file sharing, ezPeer, joint copyright infringement]
 
[In contrast to Kuro, another peer-to-peer file sharing services, ezPeer was initially found neither guilty in joint criminal enterprise liability nor aiding criminal liability by Taiwan Shilin District Court in 2005. The case was appealed to the Taiwan Superior Court. It was later twice remanded to the Intellectual Property Court by the Supreme Court. In the end, Intellectual Property Court found the defendant was guilty in joint enterprise criminal liability in 2011. See Taiwan Shilin District Court, Year 2003, Su-Zi No. 728, Criminal Case (臺灣士林地方法院 92 年度訴字第 728 號刑事判決);Taiwan Superior Court, Year 2005, Shang-Su-Zi No.3195, Criminal Case (臺灣高等法院 94 年度上訴字第 3195 號刑事判決) ; Supreme Court, Year 2009, Tai-Shang-Zi No.113, Criminal Case (最高法院 98 年度台上字第 1132 號刑事判決);Intellectual Property Court, Year 2009, Xing-Zhi-Shang-Geng-Zi  No. 16, Criminal Case (智慧財產法院 98 年度刑智上更字第 16 號刑事判決); Supreme Court, Year 2009, Tai-Shang-Zi No.4697, Criminal Case 最高法院99年度台上字第4697號刑事判決.]
 
Intellectual Property Court, Year 2009, Xing-Zhi-Shang-Geng-Zi  No. 48, Criminal Case (智慧財產法院 98 年度刑智上更字第 48 號刑事判決)
[joint criminal enterprise liability, aiding criminal liability, peer-to-peer, file sharing, Kuro, joint copyright infringement]
 
[Prior to the enactment of inducement liability of copyright infringement in 2007,  a peer-to-peer file sharing service called Kuro was found guilty in joint criminal enterprise liability by Taiwan Taipei District Court in 2005, which was the first criminal ruling against peer-to-peer file sharing services in the world. The case was appealed to the Taiwan Superior Court. It was later remanded to the Intellectual Property Court by the Supreme Court. The Intellectual Property Court found the defendant was guilty in joint criminal enterprise liability. See Taiwan Taipei District Court, Year 2003, Su-Zi No. 2146, Criminal Case (臺灣臺北地方法院 92 年度訴字第 2146 號刑事判決); Taiwan Superior Court, Year 2005, Zhu-Shang-Su-Zi No.5, Criminal Case (臺灣高等法院 94 年度矚上訴字第 5 號刑事判決); Supreme Court, Year 2009, Tai-Shang-Zi No.6117, Criminal Case (最高法院 98 年度年度台上字第 6177 號刑事判決).]

OTHER RESOURCES

The Judicial Yuan’s Database for Judicial Decisions (司法院法學資料檢索系統), http://jirs.judicial.gov.tw/FJUD/
Taiwan Intellectual Property Office (台灣智慧財產權局), http://www.tipo.gov.tw/mp.asp?mp=1

CONTRIBUTORS

Tai-Jan Huang
JSD Candidate at Stanford Law School
Email: taijan at stanford.edu

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