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.