The Philippines Proposes Legislation to Strip ISPs of Operating Licenses for Facilitating Copyright Infringement

A number of news outlets (here and here) recently reported that the Philippines is considering a new approach to deter online copyright infringement, namely, establishing a rights holder notification system that will revoke a local Internet Service Provider (ISP) operating license upon their failure to remove infringing content. Titled the Philippine Online Infringement Act (POI Act), the proposed legislation will enable the Philippines’ Intellectual Property Office (IPO) to petition the National Telecommunication Commission (NTC) to cancel an ISP’s operating license should they fail to remove online infringing content upon prior notice from the IPO.

The POI Act was proposed based on the Philippine government’s inability to deter online copyright infringement on privately hosted ISPs based on the lack of prior ISP enforcement incentives. It is also the Philippines’ first attempt to adopt an extrajudicial rights holder online copyright infringement notification system (aka a notice and takedown system – see further information here).

While notice and takedown systems have been adopted by a number of countries (e.g. U.S., Australia, and South Korea, etc.), and including government agency oversight in such systems like that under the proposed POI Act exists in other countries (Chile and New Zealand, to name a few), the POI Act’s provision of ISP operating license cancellation procedures to incentivize ISP copyright enforcement appears to be the first of its kind.

So How Will the POI Act Work?

The POI Act provides that a copyright owner or their exclusive licensee, whether local or foreign, who believes their work(s) has been infringed online by a Philippine-hosted site can submit a notification of such infringement to the IPO. Such notices must identify the location of the infringement, the work(s) being infringed, and the copyright owner or licensee’s contact information. The IPO will then evaluate the notice and notify the ISP in question of the infringement if found to be valid. Should the notified ISP not remove the claimed infringing content within ten (10) days of receipt of the IPO notice, the IPO will notify the NTC, who then may terminate the ISP’s operating license following a hearing. Under the POI Act, the NTC is granted the authorization to terminate an ISP’s operator license if the cancellation of the license is deemed “proper” and “meritorius”. Neither “proper” and “meritorius” are defined under the POI Act.

What’s the Takeaway?

While it is unclear as to if and when the POI Act will be enacted, its proposed reforms represent a new approach to deter online copyright infringement that has the potential to be a blueprint for other countries with online copyright infringement problems. Further, as it is accessible to rights holders from the Philippines and abroad, it also gives rights holders a potentially beneficial extrajudicial cross-border enforcement tool to protect their rights. Time will tell whether the POI Act will be implemented.

 

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