TIPS^®  Taiwan Intellectual Property Special

First Copyright Litigation against Peer-to-Peer File Sharing in Taiwan

Kuro, a famous music file sharing website (with charge) in Taiwan with thousands of users, was charged by the IFPI Members' Foundation in Taiwan for violation of copyright law, alleging that a member user of Kuro had download copyrighted music without licensing. The relevant evidence was forwarded to the Taipei District Prosecutors’ Office, and the prosecutor in charge believes the instance infringes the reproduction right and public transmission right of the copyright owners, and file a criminal indictment, listing the member user (User Defendant), as well as the representative of Kuro (Kuro) as co-defendant.

The User Defendant admitted that he downloaded music from Kuro, but he has made monthly payments to Kuro, not intending to use others’ copyrighted works without charges. Moreover, Kuro claimed that the website only provide a Peer to Peer (P2P) platform for its member users to exchange files on the users’ computers, and that the MP3 files that were alleged of copyright infringement are not from Kuro. However, the prosecutor believes that Kuro provides its member users with P2P file sharing software, which is the essential for copyright infringement activity. Besides, Kuro charges its member users month payments for subscription of the service, intending to profit from the filing sharing and music download. The prosecutor therefore determined that Kuro is a co-infringer and named it as the co-defendant of the case.

The Taiwan Intellectual Property Office (TIPO) issued an Official Explanatory Letter in July 2003, making clear that unless qualified for “fair use” under the Copyright Law, any exchange of copyrighted works over a P2P platform shall obtain a consent or license from the copyright owners; otherwise, the activities may constitute infringement on the reproduction right or public transmission right of the copyright owners. The act of download is “reproduction” and offering MP3 files stored on computers for the public to download is “public transmission, as far as copyright is concerned. From the legal point of view, whether offering search services for P2P filing sharing constitutes “public transmission” is still unclear. Despite similar cases around the world, there is no right answer to follow. The U.S. court shut down Napster service, but the court in Netherlands ruled that the filing sharing software, Kazaa, does not infringe copyright. In Taiwan, there is no contributory and vicarious copyright infringement theory as the U.S. does. Nevertheless, the commercial stake behind this copyright dispute is so high that the matter cannot be left unattended. We will keep you posted for any development on this case.