2015 EU-Taiwan Seminar on the Protection of Internet Copyright
Taipei, 18 September
Note: This is an abridged version. To read the full report, please click HERE.
The EU-Taiwan Seminar on the Protection of Internet Copyright was jointly organized by the European Economic and Trade Office (EETO), under the framework of the European Business and Regulatory Cooperation Programme (EBRC) and the Taiwan Intellectual Property Office (TIPO), under the Ministry of Economic Affairs (MoEA). The seminar, attended by177 representatives from European and Taiwanese government, industry and academia, hosted a field of distinguished experts to share insights on topics related to protecting Intellectual Property Rights (IPR) on the Internet. Ms Wang Mei-hua, Director-General of the TIPO and Ms Madeleine Majorenko, Head of the EETO delivered opening remarks at the seminar.
The full-day seminar featured three sessions on the following topics: the legal framework of copyright protection on the Internet in the EU and Taiwan and its current developments; enforcement measures of Internet copyright protection in the EU and Taiwan; and experience-sharing on how to enhance cooperation between rights-holders and Internet Service Providers (ISPs) and to raise public awareness of copyright protection issues.
Guests of honour
• Ms Wang Mei-hua, Director-General, Taiwan Intellectual Property Office (TIPO), Ministry of Economic Affairs (MoEA)
• Ms Madeleine Majorenko, Head of the European Economic and Trade Office (EETO)
• Mr Tamas Kenessey, Legal Officer, Digital Single Market, Directorate-General for Communications, Networks, Content and Technology (DG Connect), European Commission
• Ms Chen Yi-ching, Section Chief, Copyright Division, TIPO
• Mr Reinout van Malenstein, IP Expert, China IPR SME Helpdesk
• Ms Lo Hsueh-mei, Public Prosecutor, Intellectual Property Branch, Taiwan High Prosecutors Office
• Ms Anne-Catherine Milleron, IP Attaché, French Embassy, South Korea
• Mr Thomas Kuiper, General Manager, Gandi Asia
• Ms Valérie Laure Benabou, Professor of Private Law, Université Versailles-Paris-Saclay
• Ms Chan Ya-jan, Legal Counsel, Data Communications Business Group, Chunghwa Telecom (CHT)
• Mr Robin Lee, CEO, Recording Industry Foundation in Taiwan (IFPI Taiwan)
In her opening remarks Ms Wang Mei-hua began by saying that the ubiquity of the Internet, the shift from 3G to 4G mobile Internet, the growing use of streaming and cloud computing and digital convergence is making it increasingly easy to upload, download and use various works online. For this reason, online copyright protection has become a very important topic in international copyright discussions. Taiwan authorities have always paid attention to online copyright protection and the TIPO closely follows the latest international developments in this regard. Over the years, authorities have amended the Copyright Act several times after taking into account international treaties and online piracy is one of the important areas of focus. The biggest challenge is to balance the interests of rights-holders and users. For example, in 2013, the TIPO proposed a mechanism by which the TIPO can order ISPs to block foreign infringing websites, but the proposal was strongly opposed by online users. In addition, the TIPO held two meetings in March and September 2014, to which ISPs and rights-holder groups were invited to discuss the promotion of a peer-to-peer (P2P) infringement notification system. However, both sides were unable to reach an agreement on how to split the costs.
The TIPO has also asked media box manufacturers not to install links to infringing content in their products and collaborated with the ministries of culture and education to promote copyright protection, conveying the idea of respecting people’s copyrights online and in all aspects of their lives. Nevertheless, given the complexity of the online world and the difficulties involved in infringement investigations, authorities still need to collect opinions from all stakeholders to come up with better and more efficient solutions.
In her opening remarks, Ms Madeleine Majorenko said that ensuring strong protection of copyrighted materials online is a highly important matter in a digitalized world. However, legal systems, both in Taiwan and in Europe, were first created to respond to a world much more tangible. For this reason legal systems have to adapt to new realities where it is no longer physical disks or books that are being pirated but digital movies, books and software being shared on worldwide web of users through borderless P2P technology. One of the current goals of the European Commission is to create a digital single market, bringing together 28 member states' legislations into one common framework.
The development of new technologies and the digital economy is creating opportunities, but also new challenges in the area of IPR protection. On the one hand, to ensure growth, there is a need for strong measures that reinforce IPR in the online environment. But at the same time, we need to ensure the public's fundamental rights such as access to content and knowledge and freedom of speech and expression. Striking the right balance between these objectives is far from evident and the European Union and Taiwan should “think together” to find appropriate and effective measures. As technology progresses rapidly, no one can claim to have found the perfect solution to tackle online copyright infringement. Therefore, dialogue such as at this seminar, is of a particular importance to share experiences and to learn from each other. In addition, we need better engagement with users while we also need to improve our outreach and to coordinate actions better.
Session 1: Legal framework of copyright protection on the Internet in the EU and Taiwan
Topic: Copyright infringements on the Internet – The EU approach
Speaker: Mr Tamas Kenessey, Legal Officer, Digital Single Market, Directorate-General for Communications, Networks, Content and Technology (DG Connect), European Commission
Within the EU’s regulatory system, there are certain fields where the EU enjoys exclusive competence and others where competence is shared. Copyright and online liability is a shared competence, which is partially harmonized. The EU harmonizes national rules with directives or regulations, the Commission makes proposals while the European Council and the European Parliament adopt them. There are currently 12 directives which cover various aspects related to copyright. The E-Commerce Directive (2000/31/EC) and Directive 2001/29/EC (InfoSoc Directive) are the main ones.
Infringement of copyrighted content is only one type of illegal activity conducted on the Internet. Others include the use of malware, harmful code, child abuse content, defamation, illegal sales, incitement to terrorism and illegal gambling.
While there is no official database or source of information on illegal content on the Internet, looking at data for take-down requests is a useful reference. Given that Google is the most commonly-used search engine for a wide range of activities, statistics of take-down requests made to Google are especially instructive. According to Google’s transparency report, the number of government requests to remove content from Google Search ranges between 3,000 and 4,000 per month. In terms of specific requests for copyright-related removals, there has been a sharp increase in requests since June 2012. There are now an average of 8-9 million requests per week (at the peak there were 12 million per week). This is both a sign of the massive increase in the number of infringements and the rise in professional action of rights-holders working with companies which specialize in removal requests.
The E-Commerce Directive (2000/31/EC)provides the following types of protection from liability for all types of illegal content to online intermediaries (ISPs), subject to conditions.
Conduit: Article 12 of the directive holds that intermediaries, which transmit information or provide access to a communication network are not liable for the information transmitted on condition that the provider: a) does not initiate the transmission; b) does not select the receiver of the transmission; and c) does not select or modify the information contained in the transmission.
Caching: In terms of article 13 of the directive, ISPs are not liable for the automatic, intermediate and temporary storage of information, performed for the sole purpose of making more efficient the information's onward transmission to other recipients of the service upon their request, on condition that: a) the provider does not modify the information; b) the provider complies with conditions on access to the information; c) the provider complies with rules regarding the updating of the information; d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
Hosting: Hosting service providers now provide a much larger array of services than just data space. Under article 14 of the directive, ISPs are not liable for the information stored at the request of a recipient of the service, on condition that: a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
Member States may not oblige ISPs to monitor the information which they transmit or store, to actively seek facts or circumstances indicating illegal activity. However, Member States may establish obligations for ISPs to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations and information enabling the identification of recipients of their service with whom they have storage agreements.
The directive does not have procedural rules on how to remove illegal content, unlike in the United States. Member States have their own rules and procedures, which may differ from one another. This leads to legal fragmentation. The EU is aware of this and looking for the best way to balance the rights and interests of all stakeholders including rights-holders, intermediaries, content providers and the general public.
Looking ahead, the roadmap towards the single digital market drawn up by the European Commission (EC) under EC President Juncker has outlined 16 actions over 2015 and 2016. They will include an analysis of the role of online platforms, which will cover illegal content on the Internet. The Commission will analyse the need for new measures to tackle illegal content on the Internet without infringing on the right to freedom of expression and information. This process will examine three main options to remove illegal content more efficiently: 1) Notice and action procedures; 2) Duty of care for online platforms and 3) ‘Follow the money’.
Notice and action procedures: There are no EU-wide rules. Different procedures and unclear definitions in various Member States make enforcement complicated. The first solution is to establish EU-wide procedural rules and clarification.
In 2012, the Commission conducted a public consultation process in this regard. It received 1,060 responses. 53% of respondents said that action against illegal content is often ineffective and lacks transparency. 64% said that hosting service providers often take action against legal content. 52% said that concepts of "hosting", "actual knowledge" and "awareness" are unclear. 66% said a notice should be provided by electronic means. 77% said the sender of the notice should be identified. 83% said that the notice should describe the alleged illegal nature of the content. 80% said that there should be rules to avoid unjustified notices. 71% said that hosting service providers have to consult the content providers first. 48% said that if a hosting service provider takes proactive measures it should be protected against liability that could result. 72% said that different categories of illegal content require different policy approaches. For example child abuse and murder should be treated differently from defamation.
As was expected, different stakeholders expressed different views. Technology companies are strongly in favour of an EU directive to harmonise notice and action procedures across the EU. ISPs said that different procedures should apply to different categories of illegal content and that no general monitoring obligations should be encouraged. Copyright-holders are strongly opposed to a directive and are against harmonising minimum requirements. Civil rights organisations are strongly in favour of legislation (or at least recommendations) and clearer provisions on requirements for notices and transparency.
Duty of care or proactive measures on the part of online intermediaries refers to monitoring, filtering or blocking content, voluntary agreements between intermediaries and rights-holders, agreements between intermediaries and government authorities. While this option would be effective, it raises issues of fundamental rights (intrusion of privacy) and would be costly to implement given that it requires monitoring a lot of traffic. This would make it especially difficult for small service providers.
The Follow-the-money approach begins with rights holders identifying websites, which overwhelmingly hold illegal content. Then police special units check the information, contact the website and publish a blacklist, which advertising or payment providers then enforce. The approach has been implemented in the US and the UK. It requires cooperation with advertising and payment providers. There is no concrete information on the effectiveness of this approach but rights-holders and Internet companies claim it works. However, there is a risk of over-enforcement, especially if there is lack of redress options for those falsely targeted.
Mr Kenessey concluded that there is no single comprehensive solution to tackling Internet copyright infringements. The way forward is to engage in a comprehensive assessment process. This is the purpose of public consultations (the next round of consultations will be published online at the end of September 2015), additional studies and a further gathering of evidence, targeted consultations, roundtables and targeted workshops. The assessment is ongoing and, once completed, the Commission may propose legislation in 2016.
Topic: Legal framework of online copyright protection in Taiwan
Speaker: Ms Chen Yi-ching, Section Chief, Copyright Division, TIPO
First Q&A session
On a question from a member of audience as to the average length of time between receiving a notice and taking down infringing content, Ms Chen said it is up to the respective ISPs to decide. Ms Chan Ya-jan, Legal Counsel of the Data Communications Business Group at Chunghwa Telecom (CHT) answered that CHT can take down infringing content within 24 hours in urgent cases.
On a question on the EU’s view of website blocking, Mr Kenessey said that there had been various responses to tackling infringing content in different Member States. The general approach is to only block infringing content, not whole websites, while various provisions are taken by ISPs or host providers. Site owners can also appeal decisions.
On a question as to whether authentication of user IDs could be used to track infringers, Mr Kennesy said that it would be difficult to imagine the implementation of such a system since you don’t need an ID to use the Internet. Even the tracking of internet protocol (IP) addresses is difficult given the growing use of virtual private networks (VPNs) to conceal one’s real IP address.
On a question of media box infringements, Ms Chen said that while authorities cannot stop the sale of the media boxes, it is working with Chinese counterparts as part of ongoing cross-Strait dialogue to raise and solve this and related problems. She said that Chinese authorities are trying to get providers to only install links to legal sites.
Session 2: Enforcement measures of Internet copyright protection in the EU and Taiwan
Topic: Enforcement measures of Internet copyright protection in the EU
Speaker: Mr Reinout van Malenstein, IP Expert, China IPR SME Helpdesk
Mr Van Malenstein began by introducing the IPR SME Helpdesk, which gives free advice to SMEs on IPR issues in the Greater China region (mainland China, Hong Kong, Macau and Taiwan). It answers questions within three working days and offers IPR business tools and self-help solutions (guides and e-learning). It has even developed an online game dealing with managing IP issues in mainland China.
Countries in the EU have adopted various measures to deal with Internet copyright issues. For example, the UK has had a digital crime police unit since 2013. The biggest problem is that the average person believes that downloading copyrighted material is normal. The EU Joint Research Centre conducted research and issued a technical report in 2015 on online copyright enforcement, consumer behavior and market structure. They analysed copyright infringing activity following the shutting down of the website kino.to. They found that in the first four weeks following the shutdown, there was a 30% decrease in downloading, followed by slight increase and a slight increase in licenced consumption. However, soon after the shutdown many new websites opened, which displayed the same infringing content and once again the level of infringing activity increased. In his opinion, the short-lived decline in piracy showed that shutting down sites is not the solution to the problem.
Internet copyright protection in the EU follows international treaties (WCT and WPT) and Directive 2001/29/EC (InfoSoc Directive). Various measures have been adopted with varying degrees of success: Preventive measures, regulatory measures, technical measures and repressive measures (liabilities and criminal sanctions).
Technological Protection Measures (TPM) and Digital Rights Management (DRM) function by enabling rights holders to control access to and use of copyright-protected works on the Internet. The goal is to establish perfect exclusivity and excludability of the work. Examples of TPM include encryption technologies, audio and video encoding standards, communication protocols, scrambling or other transformation of the work or other subject-matter or a copy control mechanism. An example of DRM is Rights Expression Languages (RELs), which provide conditions, such as declaring the rights and permissions of the use of a digital work into digital languages by means of metadata and watermarking.
Enforcement measures possible under Infosoc include website blocking, claims against search engine operators aimed at removing links to infringing materials and notice-and takedown procedures of unauthorized web-based content platforms and social networks.
Intermediaries are granted safe harbour immunity from liabilities but conditions apply. For example, if the intermediary knows about illegal activity, it has an obligation to take it down.
Case law is different in all countries but some useful judgements have been made by the Court of Justice of the European Union (CJEU).
For example, the judgement in the Telekabel case held that ISPs must take all reasonable measures to prevent the unauthorized access to copyrighted work or at least make it difficult or seriously discourage users from accessing such content whilst not depriving users access to lawful content.
In the Delfi vs Estonia case, a website was held liable for angry reader comments posted underneath an article. In this case, the court ruled that removing the comments was not a violation of freedom of expression because the comments were defamatory.
Criminal sanctions may be initiated against authors of software for illegal downloading, representatives of file-sharing platforms and individual users. The best example is the Pirate Bay website.
France’s HADOPI law (Haute Autorité pour la Diffusion des œuvres et la Protection des droits d'auteur sur Internet, translated as the law promoting the distribution and protection of creative works on the Internet) was introduced in 2009 and provides what is known as a graduated response as a means to encourage compliance with copyright laws. The part of the HADOPI law that allowed for the suspension of Internet access to a repeat infringer was revoked on 8 July 2013 by the French Government because that penalty was considered to be disproportionate. The power to impose fines or other sanctions on repeat infringers remains in effect. The HADOPI law uses a “three-strikes” mechanism whereby 1) the first strike is a warning message sent by the ISP to warn the user to stop infringing; 2) the second strike is when another offense occurs within six months. If this happens, a letter is delivered and 3) the third strike occurs if, within one year after the second letter, there is a third offense. In this case a penalty or fine is issued to the user.
In the UK, following a complaint by rights-holders, a cease and desist order can be sent to the website operators to take down infringing content and a take-down notice can sent to the ISP. If this is not successful, an injunction can be issued to force the ISP to take action. The UK has also adopted a “follow-the-money” approach where offenders have faced domain name suspension.
In other cases, the CJEU has ruled that live streaming of TV broadcasts infringes copyrights. However, inserting hyperlinks on a website is not an infringement if it is accessible on another news site, unless the link is to a restricted area of the linked website.
Regarding illegal file sharing, uploading is always regarded as illegal but downloading is not always illegal (there are some exceptions for private use). This means that P2P protocols such as BitTorrent is illegal because files are both being downloaded and uploaded simultaneously.
Looking ahead, the Commission is expected to make legislative proposals to reduce the differences between national copyright regimes and allow for wider online access to works by users across the EU, including through further harmonisation measures. The proposals will include: i) portability of legally-acquired content; ii) ensuring cross-border access to legally-purchased online services while respecting the value of rights in the audiovisual sector; iii) greater legal certainty for the cross-border use of content for specific purposes (such as research, education, text and data mining) through harmonised exceptions; iv) clarifying the rules on the activities of intermediaries in relation to copyright-protected content and, in 2016; v) modernising enforcement of IPR, focusing on commercial-scale infringements (the follow-the-money approach) as well as its cross-border applicability.
We will have to wait for the proposals to see how the role of intermediaries will be affected with regard to copyright infringements, safe harbour provisions, standards of due care, notification procedures or whether liabilities will be extended to other intermediaries (such as advertising networks).
Topic: Enforcement measures of Internet copyright protection in Taiwan
Ms Lo Hsueh-mei, Public Prosecutor, Intellectual Property Branch, Taiwan High Prosecutors Office
Second Q&A session
On a question as to what extent copyrighted content may be used for educational purposes, panelists said that there should be exceptions to use content to a certain extent but that there should be limitations. Taiwan’s Copyright Act allows fair use for educational purposes but there is a debate about the extent. It is up to judges to interpret the extent of fair use.
On a question as to whether copyright owners in the EU that find their content on a Chinese website can ask for blocking, there are mechanism in the UK and other countries for this purpose. One panelist said that the best thing to do is send a letter from a Chinese lawyer to the Chinese company and to attach evidence of the infringements. One panelist pointed out that blocking in one country is only useful for that country. Moreover, site blocking is ineffective because infringers tend to respond by opening another site with the same content. Moreover, even if a site is blocked in one country, users can circumvent the blocking and gain access to the blocked websites by using VPNs to disguise their locations.
Session 3: Enhancing cooperation between rights holders and ISPs and raising public awareness of copyright protection – Experience sharing
Topic: French case study - Cooperation raising public awareness in the IP field
Speaker: Ms Anne-Catherine Milleron, IP Attaché, French Embassy, South Korea
Ms Milleron began by saying that we should first study the IP perceptions of consumers before we devise ways to protect copyrights and deal with infringements. She referred to various studies including one conducted by the Office for Harmonization in the Internal Market (OHIM) in 2013 and one by ALPHA, a French anti-piracy organization, on studies of online behavior in France.
Not surprisingly age is a key factor when it comes to downloading. 15-24 year olds account for highest percentage of illegal downloading (26% of people in this age group admitted to illegal downloading within the previous 12 months) and the percentage decreased with each age group (17% of 25-34 year- olds, 9% of 35-44 year-olds, 5% of 45-54 year-olds and less than 2% of over 55 year-olds). For this reason it makes sense to target campaigns at young people.
As to why people download illegally, many Europeans tolerate illegal downloading. 22% of people feel it is acceptable when there is no legal alternative and 42% think it is okay anytime as long as it is for personal use only.
While there are legal versions of multiple kinds of content on the Internet, the degree of awareness of the legal offers on the Internet varies significantly by content type. For example, 65% and 56% of people know that there are legal options to download music and films, respectively, but only 21% of them know there are legal options for downloading video games.
Many Europeans feel that most of the benefits of IP law go to businesses and the elite. 43% of people think it is only big business and show business that benefit, showing a lack of awareness of the fact that the economic benefits of music and film are also shared with many other segments of society.
Statistics on access to illegal Internet content in France show that downloading and P2P sharing have stabilized in recent years while there has been a steady increase in illegal streaming. This indicates that people don’t want illegal content on their computers but they view streaming as not harmful.
France has several authorities which take action against counterfeiting online. The most prominent are Cybercustoms, which is a dedicated department in the customs authority and focuses more on illegal products; HADOPI, which promotes the “three strikes” graduated approach but also legal offers by identifying legal and illegal sites and CNAC (National Committee against counterfeiting) and the national anti-counterfeiting committee, which brings together public and private stakeholders to discuss solutions to IP infringements.
CNAC has five working groups. One of them is in charge of raising awareness. Last year a campaign was launched which targeted young people. It used ironical messages to question illegal behaviour and encourage good behaviour as well as serious messages explaining the consequences of illegal behaviour, such as depriving people of income, benefitting criminals or financing terrorism. The objective of the campaign was to educate people that illegal Internet activity has consequences and they have to bear responsibility.
Besides awareness, CNAC’s Cyber counterfeiting working group has adopted a follow-the-money approach to persuade advertisers not to advertise on illegal sites, online payment systems not to be available on illegal sites and they also made a charts signed (on voluntary basis) between hosts and right owners to pro-actively fight against counterfeiting.
Topic: The role of domain name registrars and hosting providers
Speaker: Mr Thomas Kuiper, General Manager, Gandi Asia
In most EU jurisdictions, ISP’s must inform their customers about the consequences of IP infringement and their responsibilities and ensure the security of their accounts and access but ISPs are not responsible for monitoring content.
However, certain countries impose limited liabilities on hosting providers, In France, for instance, hosting providers are obliged to retain the customers contact data (ie email and postal address) and they must, upon obtaining knowledge of unlawful activity, take prompt action to contact their customer and request that they remove the copyrighted material. Hosting providers may only intervene in their customers’ content upon receiving a formal notice that is in compliance with provisions of the French Law on Confidence in the Digital Economy (LCEN). However, this situation is complicated by a lot of false claims of copyright ownership or by cases where copyrights are owned by more than one party.
Registrars are neutral technical intermediaries which provide domain name registration services. Complaints regarding copyright infringements are outside of the scope and authority of registrars and the Internet Corporation for Assigned Names and Numbers’ (ICANN). Copyright owners cannot hold registrars accountable for allowing the registration of any domain name.
In the event of a disputed use of a domain name, copyright owners may use publicly-available WHOIS data to contact the owner/registrant of a domain name and contact the registrar/registry/ICANN about incomplete or false WHOIS data and ask for verification or corrections.
To take action against the owner you have to file a complaint in the country where it is registered.
ICANN provides a Uniform Domain Name Dispute Resolution Policy (UDRP) mechanism for cases if the domain name is: 1) identical or so similar that it can be easily confused with a trademark owned by the applicant; 2) the domain name holder does not have any legal rights or legitimate interest over it or 3) the domain name has been registered and is used in bad faith. If the applicant succeeds in the dispute, the domain name can be transferred to the applicant or deleted. There is also a Uniform Rapid Suspension (URS) mechanism, which is similar to UDRP but the domain won't get transferred to the trademark holder. The procedure is accelerated and usually takes about 14 days.
With the launch of the many (more than 1,900) new generic extensions, such as .PARIS, .TAIPEI, .TOKYO, .CLUB and .PHOTO, ICANN decided to centralize the registration and protection of trademarks within a single entity: the Trademark Clearinghouse (TMCH). Each trademark has to be registered with the TMCH to enable the trademark owner to participate in the domain sunrise phase, which validates registered trademarks along with a proof of use.
Topic: Enhancing cooperation between rights holders and ISPs and raising public-awareness on copyright protection
Speaker: Ms Valérie Laure Benabou, Professor of Private Law, Université Versailles-Paris-Saclay
France has experimented with many ways to deal with copyright piracy but has not succeeded so far. P2P technology per se is not in question but the problem is the use of the P2P technology to exchange files containing works protected by copyright. Nowadays the main struggle is against illegal streaming.
Some interesting solution ideas have been raised, such as letting users continue to download copyrighted materials for a monthly fee, with the proceeds distributed to rights-holders. However, this was not accepted by rights-holders.
There are a number of difficulties in cracking down on copyright infringements including: the territoriality of the infringers may limit the possibility of cooperation, intermediaries are reluctant to fight against their own clients, it is costly to implement notice and take-down systems, it is costly to identify illegal works/files. In addition, the privacy of users has to be protected.
While many countries have adopted website blocking legislation, the CJEU limits blocking on the grounds of freedom of expression, privacy considerations and the right to run a business. Ms Benabou cited several example of recent court decisions.
In a case against Google, France’s highest court ruled that Google is obliged to make it more difficult for users to access illegal content, even if the content is still available online.
In a case where hosting provider Dailymotion did not withdraw litigious content after notification, the comments were withdrawn by the search engine and Dailymotion had to pay damages for not acting fast enough.
In a case illustrative of the lack of effectiveness of website blocking involving TGI de Paris, even after five ISPs (which together controlled 90% of the market) and three search engines blocked 16 domain names, the content reappeared on mirror sites very soon afterwards (sometimes within five minutes of being blocked) and judges could not rule on mirror sites. However in a case involving blocking access to the Pirate Bay website from French territory, this ruling also allowed the blocking of redirection, mirror websites and proxies, but the costs had to be borne by rights-holders.
France has experimented with lighter penalties, removing penalties altogether and raising awareness instead. However, a bill proposing a contravention penalty of €150 per upload and €30 euros per download was ruled as unconstitutional on the grounds that it failed to comply with the principle of equality before the law and legality of punishments and offences.
The HADOPI law adopts a graduated response (three-strikes system) and forces the cooperation of ISPs (with penalties for non-enforcement). The original proposal for the third strike to result in suspension of Internet services to infringers for one year faced strong opposition and was eventually ruled unconstitutional in 2013.
Since the beginning of the functioning of HADOPI, more than 37 million notifications have been sent by rights-holders, an average of 70,000 per day. More than17 millions identification requests have been sent to ISPs, over four million first warnings have been sent, 458,067 second warnings (less than 10% of the number of first warnings), there have been 2,117 deliberations, 313 transmissions to the prosecutor and 49 court decisions. Given the fact that there have been so few second warnings and even fewer decisions, it is not clear if users have stopped infringing activity or found other ways to infringe, such as using VPNs. Alternatively, users may not have engaged in infringing activity, but only for a period of six months. In 2013, the original third strike provision (to cut in Internet access) was replaced with a fine. This calls into question the effectiveness of the graduated response. Since then the HADOPI budget has been halved and a large number of personnel have been let go, calling into question the future of the system itself.
In the meantime, other options are being considered in France, such as the follow-the-money approach aimed at depriving up the illegal websites of incomes (by working with payment and advertising providers), black-listing pirates (with the cooperation of search engines) and closing mirror websites.
Topic: Practices at Chunghwa Telecom
Speaker: Ms Chan Ya-jan, Legal Counsel, Data Communications Business Group, Chunghwa Telecom (CHT)
Topic: Experience sharing from the recording industry in Taiwan
Speaker: Mr Robin Lee, CEO, Recording Industry Foundation in Taiwan (IFPI Taiwan)
Final Q&A session
Panelists made the point that what has happened with music and films will soon happen in design in 3D printing. This means that action is needed since it will affect many producers of objects commonly used in daily life.
While fighting piracy is still important, panelists made the point that rights-holders also need to be proactive and do their part to increase the number of legal offerings of online content similar to the way Apple did with music and Netflix has done with movies and television series. More than one panelist made the point that technology is constantly evolving and blocking websites will not stop users from accessing infringing content. There will always be ways around website blocking and new ways will be found to hide who is sharing files.
Besides providing more legal offerings, we need better payment options to make it easier to pay for content. For example, young people don’t have credit cards so they need other solutions. It was noted that new and better payment solutions are being developed such as mobile phone accounts. In this regard, Taiwan makes it hard for third party payment options, although there have been some developments in this area recently such as bitcoin, allpay and kkbox. In the EU it is possible to pay with mobile phones but services can be improved.
On the subject of website blocking, different countries have different ways of doing this. Belgium, for example blocks a number of websites but it is very easy to establish a mirror website and it is difficult to block a website that just shares a link to an infringing website.
In her closing remarks Ms Wang Mei-hua said that website blocking is a contentious issue but that the TIPO would continue to have dialogue with all interested parties and will continue to monitor international developments and keep the public informed in this regard. She proceeded to thank the speakers for sharing their experience and ideas and the audience for engaging in interesting and useful discussions, which she said were a useful reference. Looking ahead, the TIPO will continue to work on amendments to the Copyright Act as well as the assistance in law enforcement. She said she hoped that EU partners would continue to give advice and feedback, in order to help authorities to make further advances in copyright protection in Taiwan. Finally she said she hoped that another successful seminar would be held next year.