by Anderson Ho, CEO of TBPA — 2 Oct 2017
Over the past fifteen years, the Taiwan Government’s enthusiasm towards addressing copyright infringement has waxed and waned considerably, typically in response to outside attention from its international trading partners.
For example, Taiwan maintains a Memorandum of Understanding (MOU) with the United Kingdom on Cooperation in Intellectual Property Rights executed in 2013, but that agreement involves only patents and does not extend to copyrights.
Yet at least three copyright developments in that country since then are worthy of further attention and consideration in Taiwan.
These initiatives include advertising restrictions on pirated sites, search result de-escalation for pirated websites and most importantly, site blocking.
All of these measures foreshadowed by our overseas colleagues could and should be embraced as a means to promote and protect Taiwan’s creative industries from the scourge of online infringement.
INFRINGING WEBSITE LIST √
SEARCH DELISTING ?
SITE BLOCKING ?
Effective protection for intellectual property rights has long been identified as an essential component for maintaining Taiwan’s international trade relations.
During the heyday of optical disc piracy, following close consultation with the United States Government and local industry representatives Taiwan exerted a leadership role by empowering and incentivizing police units to focus attention on syndicates operating in that sphere. Sadly, that enthusiasm here has dissipated recently in relation to online infringement. During that time, momentum elsewhere in the world – particularly in the United Kingdom – provides a road map for Taiwan’s new Government during the new era of online infringement.
A UK example worthy of emulation is the government’s involvement there in disrupting the flow of revenues to pirate sites by intervening into the advertising ecosystem that drives their profitability.
Numerous studies around the world have proven that commercial advertisements, whether for legitimate or so-called ‘high risk’ products and services, are the primary means by which pirate sites make their money.
The UK’s approach to this phenomenon has been the focus of activity for a specialized enforcement task unit in London known as the Police Intellectual Property Crimes Unit (PIPCU) through an initiative launched in 2013 known as ‘Operation Creative.’
The centerpiece of initiative is the practice of placing piracy sites on an Infringing Website List (IWL), which is then shared with advertisers, agencies and other intermediaries so that they can cease advert placement on these illegal websites.
Disrupting advertising is a vital part of Operation Creative, as websites involved in digital piracy can generate substantial amounts of revenue through advert placement. In 2013 the Digital Citizens Alliance published a report that revealed piracy sites were generating $227 million (US) from advertising alone.
Since launch, Operation Creative has disrupted advertising revenues on illegal websites across the globe and has seen a significant decrease (73%) in advertising from the UK’s top ad spending companies to websites involved in digital piracy.
It is gratifying to see the Taiwan Government and industry embrace this simple but effective measure. In September, Taiwan launched its own IWL. A wide range of creative industry stakeholders, including film and television, music, publishing, and advertising, are now working together to reduce the flow of advertising profits to major pirate websites. Announcements to this effect have been made by TIPO and during a high profile promotional event on September 7 – “Developing a vibrant, digital ecosystem for Taiwan’s creators”, which addressed two of the three key content protection measures outlined in this article, namely site blocking and the IWL.
Secondly, an announcement out of the UK in February concerned a voluntary agreement amongst rights holders and Internet search companies including Google and Microsoft that would de-emphasize pirated sites from appearing prominently in their search results. The interesting thing about this initiative is that although it is voluntary in nature between willing private parties, the new Code of Conduct was nonetheless overseen by the UK’s Intellectual Property Office, which was appointed with responsibility for subsequent reporting on its efficacy. The aforementioned MOU between Taiwan and the United Kingdom, signed off four years ago, contemplated the continued exchange of views between the two jurisdictions’ relevant authorities on global intellectual property rights issues, legal amendments and implementations. Given all the developments in the UK on the copyright front since then, it seems appropriate to consider expanding that MOU accordingly. Policy makers here should emulate the UK’s Government’s support for the creative industries. An international conference on October 19th at Chinese Culture University will explore the foregoing developments, among others, as part of that exchange.
The reform proposal most urgently required should be legislative or regulatory provisions allowing the authorities to restrict access to flagrantly infringing websites located outside of Taiwan.
Virtually every jurisdiction in the world employs some degree of control over websites deemed politically or socially unacceptable. By now more than 30 jurisdictions worldwide (including in the Asia-Pacific region Australia, India, Malaysia, Singapore, Indonesia and South Korea) have explicitly extended this authority to copyright-infringing sites as well.
While Malaysia, Indonesia and South Korea have chosen administrative measures as their means to that end, Australia and Singapore chose instead to provide rights owners with the ability to obtain so-called ‘no fault’ restrictive proscriptions against sites found by courts to be primarily and predominately infringing, and requiring internet service providers to use reasonable means to disable their customers’ access to those sites.These provisions are based largely on Article 8(3) of the EU Copyright Directive.
Because these provisions respect due process of law (aggrieved website operators have every opportunity to defend themselves in court, but have invariably chosen not to) and typically results in orders served across-the-board to all ISPs rather than just a few, it’s difficult to find fault with this approach, which has shown to be largely cost-effective and unobtrusive.
A study undertaken in May by Incopro found that traffic to 5 ‘blocked sites’ in Australia decreased by approximately 72% overall. The findings also indicated a drop-off in usage of the top 50 pirate websites. In August, Australian courts ordered an additional 59 pirate websites be blocked, which will undoubtedly make a huge dent in the levels of online copyright infringement for films and television shows in that country. While admittedly not a silver bullet eliminating online infringement entirely, site blocking has nonetheless proven to be a cost-effective and entirely proportionate deterrent that, so far, hasn’t broken the internet.
Rights owners in Taiwan have urged the Government to consider similar provisions to address online infringement here, but unfortunately neither the previous administration nor the legislature has accommodated these recommendations. Hopefully the new Government will be more supportive of creators’ concerns by empowering them to better help themselves. The Government is to be applauded for supporting the creative industries in the establishment of an Infringing Website List (IWL). If Taiwan is to take a leadership role in Asia by building its digital economy on strong copyright, it could do well to mirror the UK’s ambitions, and establish both site blocking and search delisting now.