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Legal Update - 20 December 2017
ON-LINE INFRINGEMENT – TAKING DOWN NOTICE
Internet related crimes, which have continued to grow in recent years, can now hopefully be addressed in an effective manner, particularly in relation to takedown notices on websites. A takedown notice, in general, refers to a process operated by an online host in response to a court order or allegations that the content is illegal, which allows the operator to remove the contents. This is frequently used in relation to copyright infringement, as well as for libel and other illegal contents.
Copyright infringement is becoming more and more common these days with various social media platforms readily available to people. All one needs to do is copy and paste offending material on an online platform, and this amounts to an offence. As this is so easy to do, there must also be laws in place that can address the problem quickly and effectively eradicate it, i.e. to stop the publishing of the infringing material on the online platform.
The takedown notice is an important act or action that allows a party to take an action to combat illegal use of the IP rights of a copyright holder when an infringement occurs online. The Copyright Act (No. 2) 2015 gives the copyright owner a way to protect their copyright material from being infringed online, by providing a safe harbour to internet service providers; by giving them protection/exemption from liability for breach of copyright. When confronted with a situation where the copyright owner has reliable evidence showing that there is a copyright infringement in an online platform of an internet service provider, the Act, therefore, allows the copyright owner to submit a petition requesting the court to order the service provider to cease such copyright infringement.
An important aspect to be observed under the Copyright Act is that it provides an exemption from the infringement provision for any intermediary entity, which is the internet service provider. The provision provides that where the service provider is not a person controlling, initiating or ordering the alleged infringement in the computer system of the service provider, and where the service provider has proceeded with the court’s order to take down the contents of the infringing materials; the service provider shall not be held liable for the alleged infringement.
In the absence of submission of all the information requested, the court is likely to reject the petition; which will allow the infringing materials to continue to appear online and continue to irritate the copyright owner.
The Act further assists copyright owners in protecting their rights. Under the Act, the breach of computer data - where it relates to breaching public order or the good morale of the people - amounts to a criminal offence according to laws relating to intellectual property, as well as other laws.
During this year, the Ministry of Digital Economy and Society (MDES) further made an announcement relating to the process of notice, suppression of the transmission of computer data and removal of computer data from the computer system. This announcement outlines the basic process relating to the information required to submit the notice, as well the need to report the incident to the police.
The amended Act grants power to officers of the MDES, with the approval to be given by the Minister of the MDES to file a petition to the court for an order to cease dissemination, or deleting of any infringement contents online. The MDES officers are given wide powers to the extent that when there is an emergency situation, the MDES officers may file for the court order before obtaining approval from the Minister of the MDES.
The process seems to be much quicker now. However, it is vague on the point of how much evidence is required to be furnished. Hence, when the petition is made, the court may demand other evidence which would delay the processes.
Unlike the Copyright Act, where the rights owner must take the initiative to stop the infringing party, under the Computer Crimes Act, the MDES is the one requesting the petition on behalf of the right owner. Therefore, it is hoped that they will be much more successful in blocking infringing websites.
It is hoped that the introduction of the amendments to the Computer Crimes Act will be effective in combatting the increasing number of copyright infringement on websites. However, as to how effective these processes will be remains to be seen.
This article is not to be treated as a legal opinion but rather only as a guide to On-line Infringement – Taking Down Notice.
This article is prepared by Ms. Pavinee Bunyamissara & Mr. Rajen Ramiah
(20 December 2017)
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