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LEGISLATION

Copyright Act, as amended on January 22, 2014[(1) Intermediary 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.

(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.

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.

With respect to information storage service providers, there are provisions for notice and takedown (Article 90-10).

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 Liability. Article 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 PROPOSALSBill on Telecommunication Act[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 RESOURCESThe 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 HuangJSD Candidate at Stanford Law SchoolEmail: taijan at stanford.edu

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