Sunday, October 11, 2009

ISPs' liability in Singapore

In Singapore, ISPs will be able to enjoy a certain level of immunity from copyright infringements claims. It is provided under the USSFA. USSFA is Unite States -Singapore free trade agreement, where both countries have agreed to their terms of protection for copyrighted works, performances and phonograms in a line. It also covers additional protection to the standards relevant and applicable to the digital environment.

There are defences to the service provider regarding to the copyright infringement which can be regarded as immunity for them. However, they are only can enjoy such immunity for the functions stated by Article 16.9.22(d) which consist:

• Transmitting, routing or providing connections for material without modification of its content, or the intermediate and transient storage of such material in the course thereof;

• Caching carried out through an automatic process;

• Storage at the direction of a user of material residing on a system or network controlled or operated by or for the service provider; and

• Referring or linking users to an online location by using information location tools, including hyperlinks and directories.

The immunity applies only if the service provider does not initiate the chain of transmission of the material and does not select the material or its recipients. Except to the extent that a function described in 3.3 (d) in itself entails some form of selection.

Furthermore, Singapore Copyright Act was silent on whether network service providers were liable in situations where there was copying in a cache system and where copyright material was made available on the Internet on demand using a search engine. In an article written by Susanna H.S Leong, it states that;

"A significant amendment to the Copyright Act concerns that of the liability of ISPs. To address the issues relating to ISPs, a whole new Part IXA on 'Works, or other subject-matter, in electronic form' is introduced into the Copyright Act."

Susanna H.S Leong opined that section 193B states that the copyright in any material is not infringed by an ISP when it does any act in relation to an electronic copy of the material made available on a network if the -Transmission, routing and provision of connections (Sec 193B)
-System caching
(section 193C)

Moreover, this article also states that, if an ISP has to remove an electronic copy of any material from a network operated and controlled solely by him or if he has to disable access to the material on the network, he may defend himself under section 193D conjunctively with provisions under section 193C(2)(b) from any criminal liability under any rule of law with the condition that such event was done due to statutory declaration.

ISPs' Liability in Malaysia

Although, Malaysia does not have any provision which specifically governs the ISPs' liability, but it is controlled under the Communication and Multimedia Act 1998 in part 1 under section 6.
Under this section, ISP is divided into 5 types because it has different type of license.

1 network facility
any element or combination of elements of physical infrastructure used principally for, or in connection with, the provision of network services, but does not include customer equipment.

2 network service
a service for carrying communications by means of guided and / or unguided electromagnetic radiation. Example a company which provides communication service like Telekom, Maxis, DiGi and many more.

3 application service provider
person who provides an applications service.

4 content application service provider
an applications service which provides content.
Any website which provide a information which has content inside. For example Youtube, Wikipedia, Wobopedia and many more.

5 network service provider
A company that provides Internet access to ISPs. Sometimes called backbone providers, NSPs offer direct access to the Internet backbone and the Network Access Points (NAPs)

Generally in Malaysia, the ISP's liability is governed by the Multimedia and Communication Act 1998. Section 211 provides that;
(1) No content applications service provider or other person using a content applications service, shall provide content which is indecent, obscene, false, menacing, or offensive in character with intent to annoy, abuse, threaten or harass any person.
(2) A person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both and shall also be liable to a further fine of one thousand ringgit for every day or part of a day during which the offence is continued after conviction.
Regarding to the defamation, there is a difficulty in establishing an ISP's liability for defamation is that national defamation laws differ so widely.

According to Chris Reed and John Angel ,
"… it is possible to state with certainty that in most, if not all, jurisdictions, the fundamental basis of defamation liability is the publication of untrue information, that liability will be based on the extent of the damage to the reputation of the person referred to in that information, and that the person's reputation of the person referred to in that information, and that a person's reputation cannot be damaged unless the information is disseminated to people other than the author."
In a simple word defamation occurs when a person expresses words that may lower another person’s reputation in the eyes of the public.

The laws governing defamation in Malaysia include in civil and criminal cases. In civil cases of defamation, when a private person sues another private person for defamation, the Defamation Act 1957 is applicable. Whereas in criminal cases of defamation, when the state prosecutes a private person for defamation, Section 499 to Section 502 of the Penal Code is applicable.

Copyright in Malaysia is controlled by the Copyright Act 1987. A very basic formulation is that there will be a copyright infringement when an individual copies a work which is held in an electronic format without the owner’s permission.

The authors also stress that ISP is only able to operate by copying information. If the ISP is merely part of the communications chain, it copies received pockets into memory (probably onto disk) and then sends fresh copies to the next host in the chain.

However, any copy to the RAM is considered most likely not an infringement. It is because of their lack of permanence and it could not be said to breach copyright.
However in daily operations, ISP will make further copies on a range of storage media, for example hard disc when caching a resource or DAT tapes when making a backup copies of a resource. (Playboy Enterprise v Frena).

The ISP also must comply with section 263 of the Communications and Multimedia Act 1998, Part x, General , Chapter 4, National Interest Matters regarding to the general duty of licencees which provides that:
"(1) A licensee shall use his best endeavour to prevent the network facilities that he owns or provides or the network service, applications service or content applications service that he provides from being used in, or in relation to, the commission of any offence under any law of Malaysia.

(2) A licensee shall, upon written request by the Commission or any other authority,assist the Commission or other authority as far as reasonably necessary in preventing the commission or attempted commission of an offence under any written law of Malaysia or otherwise in enforcing the laws of Malaysia, including, but not limited to, the protection of the public revenue and preservation of national security."

As reported in The Star Online, dated 28 August 2008, " Section 263 falls under the National Interest Matters part of the Act which states that an Suruhanjaya Komunikasi dan Multimedia Malaysia (SKMM) licensee would prevent their facilities from being used in, or in relation to, the commission of any offence under any law of Malaysia. It also states that upon written request of the SKMM or any other authority, the licensee would assist to prevent the commission or attempted commission of any offence under any written law of Malaysia, including but not limited to the protection of public revenue and the preservation of national security."

ISPs’ liability in Germany

Since 1st August 1997, Germany had already listed out the liability of the Internet Service Providers’ regulation. This regulation is laid down in the Teleservices Act and the Interstate Media Services Treaty. This Act provides different functions of ISPs and the services that an ISP could perform. Based on the Act, ISPs are liable for their own infringed contents according to the prevailing rules. However, for the case of infringement of content made by their users, they will only be liable if they have the knowledge about the infringed contents and if they technically able to prevent its use on the Internet. ISPs are also not liable for the third-party contents to which in this case they only provide access to the Internet.

A lawsuit which has been reported in Germany about the infringed contents was on 30th March 2000 whereby a Munich court convicted America On Line (AOL) to pay damages to the owner of copyrights in MIDI music-files. AOL had offered a ‘music soundforum’ to its subscribers that enable them to upload and download music files from the forum. AOL could not avail itself of the defence offered by the Teleservices Act because AOL possessed knowledge of the infringement and could easily stopped it.

sources: netlaw

ISPs’ liability in the United States

In the United States, one of the Acts which provides the liability for the ISPs is the Digital Millennium Copyright Act 1998. This Act governs the liability of the Internet sites and ISPs for the copyright infringement of its user. It provides a mechanism for copyright owners to force site owners and ISPs to remove infringing material. For example, You-Tube which is an ISP as restricted by the Act have the right to remove any illegal post or unauthorized copy that are posted from its site.

When discussing about the liability for the ISPs, some of the cases which can be referred is the Netcom case and Sega Enterprises v. Maphia . These two cases are quite relevant to our topic which concerned the nature of You-Tube. In the Netcom case, the court held that the ISP is only liable for the contributory infringement and not under the direct infringement as the ISP uses an automatic pass-through of allegedly infringing messages posted by its subscriber. To pass under the contributory liability, the court decided that there must be a direct infringement, to which the contributory infringer, which in this case was Netcom, has knowledge and encourages or facilitates the illegal act. The court in the subsequent Sega v. Maphia case held that a BBS (Bulletin Board Service) and its system operator liable for contributory infringement for both the uploading and the subsequent downloading of copies of Sega’s video games by users where the system operator had knowledge that the infringing activities was going on through the bulletin board. In Sega’s case, the claim under direct liability was also refused by the court on the basis that the operator (Maphia) had not participated in the very acts of uploading or downloading themselves.

The element of knowledge must also be fulfilled to succeed under this claim. If the operator does not have any knowledge about the infringing materials post on its site, no liability can be charged upon the ISPs. In short, the requirement of knowledge may eliminate contributory liability on the part of ISP or BBS operator with respect to many instances of infringement for which ISP or BBS merely a passive information conduit and has no knowledge of the infringement.