TIPS^®  Taiwan Intellectual Property Special

P2P Filing Sharing Is Not Copyright Infringement for Criminal Liability

The music industry in Taiwan has brought a criminal copyright violation action against peer-to-peer (P2P) file sharing software company, ezPeer, for providing software at its website for the purpose of transmitting and downloading copyrighted works of others. Taiwan Shih-Lin District Court reached a decision on June 27, ruling that the representative ezPeer does not constitute criminal copyright offense. The decision contradicts the decision of U.S. Supreme Court, which ruled that the filing sharing software provider shall be responsible for copyright infringing activities.” Shih-Lin District Court’s decision is under a lot of critics and it is generally believed that the decision will damage the image of Taiwan in the intellectual property protection.

The major reason that Criminal Tribunal of Shih-Lin District Court ruled ezPeer is not criminally liable for copyright infringement is that ezPeer itself did not engage in illegal public transmission and reproduction, neither was it an accomplice with the person(s) who actually engaged in illegal public transmission and reproduction. However, the Court made it clear that this is a criminal decision, and whether ezPeer shall be responsible for civil liability for copyright infringement was not discussed in the present case. Besides, the Court also believes that, in terms of its use, P2P is a new method of Internet communication, which shall enjoy certain degree of fair use and criminal immunity, and does not create “a risk that is unbearable under the criminal law.” Such communication tool provide the Internet users with the key technology and assistance for legal, as well as illegal, activity on the Internet, but there is no regulation in Taiwan that requires the Internet service providers should carry out the duty to screen the content. As a result, it is ruled that ezPeer’s act did not constitute criminal offense. The opinion also pointed out that an amendment on the copyright legislation is needed in order to solve cases in this kind.

The TIPO also provides its opinion that based on the “neutral technology” principle, a software developer or provider shall not be legally responsible for developing or providing certain technology; it shall depend on how the user in each specific case uses such technology. For example, if the software provider gains profits from providing the software, is aware of the infringement of the software users and has the right and ability to control the infringement, it is likely that the software provider will be found liable for copyright infringement. For individual users, the Internet is infinite and there is not much space for fair use for public transmission or reproduction of copyrighted works of others. Even if the users pay certain monthly fees to a specific software company in order to use the file sharing software, as long as the filing sharing act is not consented by the copyright owner(s), it may constitute infringement.

Article 65(1) of Taiwan Copyright Law stipulates that “fair use” does not constitute copyright infringement, and whether a specific act is a fair use shall be determined under its actual circumstances. To avoid breaking the law, people shall avoid downloading or exchanging copyrighted works of others on the Internet without consent. In ezPeer case, the software provider did have illegal intent to seduce the users to use the software for exchanging copyright works of others. It should be sufficient for civil liability for copyright infringement.

Digital music has become the mainstream in the music industry. To establish a legal mechanism for the consumers to download digital music legally is better than prohibiting the software companies from providing file sharing software. As a result, the government shall assist music copyright owners and software providers in negotiating and working out a licensing mechanism so that the public can be benefit from the convenience brought by the technology to the entertainment industry.