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.
Intellectual Property (IP) Watch reported late last month that Nigeria was in the process of reforming its copyright laws for the digital age, including the adoption of its own notice and takedown Internet service provider (ISP) safe harbor scheme. As detailed in the Nigerian Copyright Commission’s (NCC) draft 2015 Copyright Bill (Draft Bill), the proposed notice and takedown scheme would create extrajudicial legal procedures in which an owner of a copyright protected work can petition a ISP subject to Nigerian jurisdiction to remove content hosted by the ISP that infringes the work. Like in the U.S. under the Digital Millennium Copyright Act (DMCA) and other countries that have notice and takedown safe harbor schemes, such an ISP would be required to remove such hosted content under certain circumstances in order to qualify for a safe harbor form contributory liability for copyright infringement.
If adopted, such procedures would make Nigeria one of the few countries in Africa with a notice and takedown scheme, giving copyright owners greater means of online enforcement of their rights in Nigeria, and potentially beyond. However, Nigeria’s draft notice and takedown scheme varies from its foreign counterparts. Further, it is uncertain whether it will be adopted, and if so, whether it will be adopted in its proposed form. To understand these issues, it is important to first understand the provisions of Nigeria’s proposed notice and takedown scheme.
Section 47 of the Draft Bill provides that an owner of a copyright-protected work or their agent (Complainant) may submit a notice of alleged online infringement of their work to an ISP hosting such infringing content. In order for such a notice to be effective, it must include the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right in a work that is allegedly infringed;
- Identification of each work claimed to have been infringed;
- Identification of the content that is claimed to be infringing such work(s), and information reasonably sufficient to permit the ISP to locate such content;
- Contact information reasonably sufficient to permit the ISP to contact the Complainant, such as an e-mail address, telephone number, and/or physical address;
- A statement under penalty of perjury that the Complainant has a good faith belief that use of the allegedly infringing content in the manner complained of is not authorized by the copyright owner, their agent, or the law; and
- A statement that the information in the notice is accurate, and that the Complainant is authorized to act on behalf of a owner of an exclusive right that is allegedly infringed.
Once a notice is submitted to an ISP, the ISP shall promptly notify their subscriber hosting the allegedly infringing content (Subscriber) of receipt of the notice. If the Subscriber fails to provide the ISP with information justifying their use of such content within ten days after the receipt of the ISP’s notification, the ISP must take down or disable access to such content. However, if the Subscriber provides information justifying their legitimate use of the content, or the ISP is convinced that the Complainant’s notice is without merit, the ISP will promptly inform the Complainant of their decision not to takedown or disable such content.
An ISP can restore access to taken down or disabled content if the ISP receives a written counter-notice from the Subscriber, which the ISP has forwarded to the Complainant immediately upon receipt; and the ISP does not receive, within 10 days, a subsequent notice from the Complainant indicating that no authorization has been granted to the Subscriber for use of the content.
Further, the Draft Bill states that an ISP shall not be liable for any action taken under the notice and takedown scheme that is taken in “good faith.” A copyright owner dissatisfied with a determination or action by an ISP may refer their matter to the NCC for further evaluation.
Evaluating The Proposed Scheme
Now that we know the NCC’s proposed notice and takedown scheme under the Draft Bill, what are its strengths and weaknesses?
Mandated Removal: The Draft Bill obligates an ISP to remove infringing content upon receipt of a Complainant’s notice. As such, it ultimately makes the Draft Bill’s notice and takedown scheme more robust than ISP safe harbors without mandated take down or disabling provisions. For example, the NCC’s proposed scheme is more robust that notification systems that solely require an ISP to notify a Subscriber of their infringing acts upon receipt of a Subscriber’s notice as in Canada, or national schemes that require multiple Complainant notifications and/or expedited judicial action in order for a ISP to be mandated to take action as in New Zealand or Chile.
Delayed Response Time: While the NCC’s proposed scheme mandates an ISP’s removal of hosted content under certain circumstances, it only mandates that an ISP remove infringing content 10 days after receiving a Complainant’s notice and upon receiving no response from a Subscriber. This contrasts from the DMCA that requires an ISP to act “expeditiously” to remove infringing content upon receipt of a Complainant’s notice. See 17 U.S.C. § 512(b)(2)(E). However, the NCC’s proposed scheme still mandates that an ISP eventually remove infringing content after the 10 day period, mirroring similar waiting periods in other countries (Japan (7 day wait period), and Malaysia (48 hours), among others), and without requiring any reposting of such content should no further legal action be taken by the Complainant (as in India).
Ambiguous Exemption: While the Draft Bill obligates an ISP to remove infringing content under qualifying circumstances as described above, its good faith clause may allow an ISP to evade liability for failing to remove infringing content should the ISP’s acts or omissions be considered in good faith. Without any further definition of “good faith” in the Draft Bill, it is uncertain what such a standard would be, nor how it will be interpreted.
What’s The Takeaway? It remains to be seen whether the NCC’s notice and takedown scheme will be adopted, and whether it will be adopted in its current proposed form. Its provisions offer multiple benefits, as well as some drawbacks, for copyright owners compared to its foreign counterparts. Those with current online copyright enforcement concerns in Nigeria should seek qualified Nigerian counsel.