|Safe Harbour for Online Service Providers to Limit Liability for Online Copyright Infringement|
The Copyright (Amendment) Bill 2011 was introduced into the Legislative Council on 15 June 2011 with an aim to strengthening copyright protection in the digital environment. Among the various proposals, a statutory “safe harbour” has been proposed for online service providers (“OSP”) to limit their potential liability for copyright infringement which may occur on their service platforms. Such safe harbour will be available to them if they comply with three prescribed conditions in the future amended Copyright Ordinance (Cap. 528) (“CO”) and observe the non-statutory Code of Practice to be published under section 88I of CO which will set out practical guidelines and procedures for OSPs to follow when notified of copyright infringement on their service platform (the “Code”). A Second Draft of the Code was published on 31 January 2012 to collect further comments of the public until 2 March 2012.
Prescribed conditions in CO
By complying with the following conditions in section 88B(2) of CO, OSPs would not be held liable for damages or other pecuniary remedy for copyright infringement that occurs on their service platforms merely because they have provided or operated online services facilities (section 88B(1)):
1. they have not received and are not receiving any financial benefit directly attributable to the infringement (section 88B(2)(b)).
2. they accommodate and do not interfere with standard technical measures used by copyright owners to identify or protect their copyright works (section 88B(2)(c)).
3. they designate an agent to receive notices of alleged infringement, by supplying through their service, including on their website in a location accessible to the public, the name and contact details of the agent (section 88B(2)(d)).
OSPs’ due compliance with the above three conditions and all provisions of the Code would be treated as having taken reasonable steps to limit or stop the infringement in question under section 88B(3).
Notice and Notice System
This system is relevant for OSPs (mainly Internet access service providers) who offer a conduit service for the transmission, routing or connections for access to the Internet and other online communication between or among points specified by users. Such OSPs usually do not check or modify the content of the materials transmitted online as chosen and directed by the users.
If a complainant believes, on reasonable grounds, that a subscriber to an OSP’s online service has infringed the owner’s copyright by means of the online service, the complainant may send a notice of alleged infringement to that OSP. Such notice shall contain all the required particulars in Form A as annexed to the Code.
The OSP should acknowledge receipt of such notice and may send a written notice to the complainant if there are grounds for not processing the notice including: (a) all required particulars in Form A are not provided; (b) information does not relate to one of the OSP’s subscribers; (c) notice refers to an inactive account; (d) subscriber using the IP address at time of alleged infringement cannot be identified. If not, the OSP should, as soon as practicable, send a written notice to the subscriber giving:
1. a statement that the subscriber’s account for online services has been identified with an alleged copyright infringement;
2. a copy of the notice of alleged infringement;
3. information on the legal consequences of copyright infringement in Hong Kong, with a reminder to the subscriber that he may seek independent legal advice and/or contact the complainant directly regarding the alleged infringement (“legal consequences”);
4. information on the OSP’s policy and/or contractual terms against any use of its online services in breach of copyright and its consequences (“OSP’s policy”).
Notice and Takedown System (Storage)
This system applies to OSPs who have stored material or activity accessible to users through the Internet on its service platform, as directed by a subscriber.
A complainant may send a notice of alleged infringement containing full particulars in Form A to an OSP if he believes, on reasonable grounds, that a material or an activity on its service platform infringes the copyright of the owner’s work and he wishes the OSP to remove the material or disable access to the material or activity in question. The OSP should acknowledge receipt of such notice and shall remove the material or disable access to the infringing material or activity as soon as practicable, after which the OSP shall promptly take reasonable step to send a written notice to the subscriber setting out the followings:
1. a statement that the material or activity stored as directed by the subscriber has been identified with an alleged copyright infringement and that the OSP has removed or disabled access to the material or activity;
2. a copy of the notice of alleged infringement;
3. a statement that if the subscriber wishes to dispute or deny the alleged infringement and/or the removal or disabling, he may send a counter notice to the OSP within 20 working days after date of OSP’s notice;
4. legal consequences and OSP’s policy.
A subscriber who wishes to dispute or deny the alleged infringement and/or the removal or disabling may send a counter notice in the form of Form B as set out in Annex to the Code to the OSP within 20 working days after date of OSP’s notice. The OSP shall acknowledge receipt and then promptly send a written notice to the complainant containing the followings:
1. a copy of the counter notice;
2. a statement that if the complainant does not, within 20 working days after the date of OSP’s notice, inform the OSP by written notice that proceedings have been commenced in Hong Kong to seek a court order for the purpose of restraining the subscriber from engaging an infringing activity on the OSP’s service platform, the OSP will reinstate the material or cease disabling access to the infringing material or activity.
The OSP should within 25 working days after date of sending the above notice to the complainant take reasonable steps to reinstate the material or cease disabling access to the material or activity unless the complainant serves the above notice of proceedings to it.
Notice and Takedown System (Information Location Tools)
This system regulates OSPs who have linked or referred users, on its service platform, to a location on the Internet which contains infringing material or activity by information location tools such as directories, references or hypertext links.
A complainant may send a notice of alleged infringement in the form of Form A to an OSP regarding a link or reference on its service platform, if he believes, on reasonable grounds, that the link or reference refers to material or activity that infringes the copyright of the owner’s work and he wishes the OSP to disable access to the material or activity in question. The OSP should acknowledge receipt of the notice and shall as soon as practicable (a) disable access to the infringing material or activity; and (b) remove or disable access to any infringing material or activity made and stored by the OSP on its service platform.
Under all three systems, all notice or counter notice should be sent to the relevant OSP’s designated agent by electronic or other designated means. Failure to provide all the particulars in Form A or Form B may render the notice defective and the OSP is not required to handle a defective notice. OSPs should also ensure compliance with all applicable laws, notably the Telecommunications Ordinance (Cap. 106) and the Personal Data (Privacy) Ordinance (Cap. 486).
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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