Taiwan brings in ‘three strikes’ law as the French version is finally approved

June 2009


Taiwan’s legislature has passed an amendment to the island’s Copyright Act aimed at discouraging digital copyright infringement over peer-to-peer networks and increasing the responsibility of Internet Service Providers. The country has adopted the much debated ‘three strikes’ system where web users who continue to access unlicensed sources of content after receiving two warnings could lose their internet connections – or at least have them restricted. Whilst a number of countries have looked at this system, so far only France and New Zealand have implemented ‘three strikes’ as law. In France the much criticised proposals have now worked their way through the French parliament although in New Zealand the Government is still trying to work out how to implement their new and again much criticised law . The Taiwanese government has introduced the system in order to achieve it’s twin aims of cracking down on internet piracy – without flooding the courts with lawsuits from foreign content owners against the providers of file-sharing services or individual file-sharers. The courts in Taiwan are known to be overburdened. It seems the new law means that repeat offenders will have their internet access “restricted” rather than automatically cut off. That could mean temporary suspensions rather than long term denial of service, something that might appease consumer rights bodies as well as the ISPs who don’t want to lose customers (although equally don’t want to be liable for customer’s illegal downloading activities). Commenting on reports that ISPs could cut off consumers who have downloaded illegal content by mistake, Margaret Chen, Deputy Director General of Taiwan’s Intellectual Property Office, told reporters: “That’s not really the point. These people are doing something they shouldn’t be doing in the first place. Besides, there are lots of ways to restrict Internet access besides cutting it off entirely”. The P2P amendment will “significantly redress the problems of copyright infringement” the Intellectual Property Office said in a statement. The new laws will also give ISPs ‘safe harbour’ protection although this is balanced by provisions ensure rights owners can have infringing content removed – Billboard say that the new law is based on the 2005 U.S. Supreme Court decision against Grokster and that the ISP liability amendment allows rights holders to either claim their rights via judicial proceedings, or else follow a “notice and takedown” procedure to have copyright infringing content removed.

Elsewhere he French Assembly has finally approved the ‘Creation and Internet’ bill that will cut Internet connections to those who repeatedly download music and films illegally. The legislation, which has extensively lobbied for by the music and film industries, gives Internet users two warnings for acquiring illegal music or film downloads. After a third infraction, Internet connections would be cut. Whist France is the first European country to target Internet users in such a way, Sweden’s IPRED law forces ISPs to reveal the names of people attached to IP addresses suspected of sharing copyrighted music, movies, other files without permission and this in itself resulted in a 33% drop in internet traffic presumably as potential fileswappers thought twice and downloaders considered the risk. President Sarkozy supports the new French law but critics say the bill will intrude on Internet users’ civil liberties and will be difficult to enforce.

In the UK a collection of trade bodies representing content owners including the record industry’s BPI, the UK Film Council, actors’ union Equity and the Federation Against Copyright Theft used London’s Creative Economy Conference to put pressure on the government to force ISPs to take a more proactive role in policing online piracy – and again pushed for the ultimate sanction of internet disconnection to be introduced under a ‘graduated response’ system. BPI boss Geoff Taylor told the event: “An endless free lunch for consumers when it comes to digital content is unsustainable. Unless ministers strengthen proposals for ISPs to deal with illegal behaviour online a ‘creative crunch’ will follow – investment in new British talent will ultimately dry up. The internet cannot be a place where respect for the law is abandoned. Even though the music business is creatively fit and strong, free-loading reduces investment in new music and in turn threatens the jobs of thousands of young people working in A&R, recording, marketing and promotion“. Taylor called on the government to do three things in the final draft of its much previously reported ‘Digital Britain’ report:“To recognise that the music sector has already transformed its business models online; to take seriously the argument that a “write and sue” policy will not be effective; and to use the time available in this parliament to introduce legislation requiring ISPs to act against persistent illegal downloaders“. In response the Internet Service Provider Association issued the following statement: “ISPA continues to dispute calls from some elements of the creative industries for the disconnection of users or technological measures as a method of dealing with potential infringers of copyright online. ISPA members have consistently explained that significant technological advances would be required if these measures are to reach a standard where they would be admissible as evidence in court. ISPs and consumer groups consider disconnection of users to be a disproportionate response, a view that was recently supported by the European Parliament”.

The ISPA are referring to the European Parliament’s recent rejection of attempts by EU governments (notably France) to crackdown on illegal downloaders of music and film. The measures were part of proposals to update Europe-wide telecommunications rules to allow something approaching ‘three strikes’ but the European Parliament voted 407 to 57 to throw out a compromise reached by EU governments a few weeks ago that would have allowed France’s new law to cut off Internet access. Lawmakers reinstated an earlier demand that “no restriction may be imposed on the fundamental rights and freedoms of … users, without prior ruling by the judicial authorities.” Viviane Reding, the EU’s Telecoms Commissioner said the move was “an important restatement of the fundamental rights of EU citizens.” The proposals will now work their way through the rest of the European legislative process, and could still yet hit other hurdles – but if passed will surely invalidate France’s proposed three strikes plan which does not rely on courts to arbitrate.


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