Exemption of Copyright Infringement Liability for Internet Service Providers & Abuse of Notice-and-Takedown Mechanism

The new aspects of use for publications under the network-digital environment may provide the rights holders with new business opportunities in economic benefits, and yet in the meanwhile an improper use for such publications could also provide them with extremely high loss due to the digital characteristic of the Internet. When the realm of the Internet crosses over the traditional borders of nations, the traditional laws are inadequate to deal with cross-border issues, especially the ones regard to the balance of rights and interests, under the Copyright Law, among the copyright owners, the Internet Service Providers, and the users. Because the purpose of the Copyright Law aims to achieve the harmonization and the developments of the public and national interests, the related issues have caught attentions of the international society. By observing the provisions of the copyright laws currently in Taiwan and the United States, we can easily find that most of the provisions emphasize the protection of rights holders, more than the protection of users. For instance, the current Take Down mechanism implementing the Digital Millennium Copyright Act (DMCA) presumes ongoing of a copyright infringement, and that through informing of the infringement from the copyright owner, the DMCA would require the Internet Service Providers taking down the infringing materials, and then informing the users. Considering the above issues, this paper endeavors to discuss the legal nature of Fair Use in order to understand whether the Internet Service Providers would cause false notices without taking the conditions of Fair Use into consideration for they are only obliged to notify but not to investigate the users. In addition, this paper needs to discuss the definition of misuse, the prevention of misuse of the Take Down mechanism by the right holders, whether the Internet Service Providers should do the Fair Use judgment before executing the Take Down Service, and the position of the Internet Service Providers comparing to the balance of interests of the copyright holders and of the users. This is because the Take Down mechanism of the DMCA could be misused by the rights holders, and results in a situation that is unfavorable to the users’ freedom of expression under the fair use condition. Finally, the author discusses whether it is necessary to expand the scope of Fair Use according to different social cultures. This paper strives to find out the possible abuses occurred in execution of the Take Down mechanism by referring to and comparing with the DMCA, the directive of Electronic Commerce of the EU, and the Copyright Act in Taiwan and their cases from the angles of the rights holders, the users, and the Internet Service Providers. Hopefully, the deficiency of current laws in Taiwan can be further examined so as to promote joining in the Trans-Pacific Partnership.