December 2020
Mere provision of a hyperlink does not constitute an act of public transmission (Taiwan)
Yuki Chiang
The Supreme Court rendered the 109-Tai-Shang-2616 Criminal Decision of June 30, 2020 (hereinafter, the "Decision"), holding that mere provision of a hyperlink does not constitute an act of public transmission, but if the actor is obviously aware that the hyperlinked website is an video piracy website, s/he is still likely to become a joint offender or accessory of an infringement upon the public transmission right of the copyright owner.
According to the facts underlying this Decision, the Appellants (i.e., the Defendant's company, its legal representative and chief technology officer, etc.) developed an app for "TV Soap Opera 2", in which the video programs whose copyrights are owned by the Complainant's company were included in the App's playback list so that an unspecified public can use the App to receive the Programs and browse relevant promotional pictures. In addition, the Defendant gained profits that were generated through the insertion of a massive number of advertisements and the collection of advertising fees, and was accused for copyright infringement.
The Supreme Court held that the so-called "hyperlink" refers to a technology by which a user may click on a link to open and further browse an external website. Therefore, the person that provides a hyperlink merely "provides a link" and is not a person that creates an audiovisual platform and uploads video clips for an unspecified public for perusal. Therefore, mere provision of a hyperlink does not meet the definition of "public transmission". Further, if an actor uses an "embedded hyperlink technology", which in fact takes a user that clicks on the link to an external website to view video clips even though the actor creates a false impression that the webpage still remains the same with the original user interface. Such embedded hyperlinking act is still not an act of "public transmission".
Furthermore, it was pointed out in this Decision that in reference to an email explanation from the Intellectual Property Office of the Ministry of Economic Affairs, if there is communication of joint criminal intent and joint control over the criminal conduct between the developer of a hyperlink and the party engaging in illegal public transmission, they are likely to be established as the joint offenders. If a user can be conveniently exposed to copyright infringing works, resulting in escalated losses to the works as a result of illegal public transmission, the developer of a hyperlink are likely to be considered as an assessory of the illegal transmission.
The Supreme Court rendered the 109-Tai-Shang-2616 Criminal Decision of June 30, 2020 (hereinafter, the "Decision"), holding that mere provision of a hyperlink does not constitute an act of public transmission, but if the actor is obviously aware that the hyperlinked website is an video piracy website, s/he is still likely to become a joint offender or accessory of an infringement upon the public transmission right of the copyright owner.
According to the facts underlying this Decision, the Appellants (i.e., the Defendant's company, its legal representative and chief technology officer, etc.) developed an app for "TV Soap Opera 2", in which the video programs whose copyrights are owned by the Complainant's company were included in the App's playback list so that an unspecified public can use the App to receive the Programs and browse relevant promotional pictures. In addition, the Defendant gained profits that were generated through the insertion of a massive number of advertisements and the collection of advertising fees, and was accused for copyright infringement.
The Supreme Court held that the so-called "hyperlink" refers to a technology by which a user may click on a link to open and further browse an external website. Therefore, the person that provides a hyperlink merely "provides a link" and is not a person that creates an audiovisual platform and uploads video clips for an unspecified public for perusal. Therefore, mere provision of a hyperlink does not meet the definition of "public transmission". Further, if an actor uses an "embedded hyperlink technology", which in fact takes a user that clicks on the link to an external website to view video clips even though the actor creates a false impression that the webpage still remains the same with the original user interface. Such embedded hyperlinking act is still not an act of "public transmission".
Furthermore, it was pointed out in this Decision that in reference to an email explanation from the Intellectual Property Office of the Ministry of Economic Affairs, if there is communication of joint criminal intent and joint control over the criminal conduct between the developer of a hyperlink and the party engaging in illegal public transmission, they are likely to be established as the joint offenders. If a user can be conveniently exposed to copyright infringing works, resulting in escalated losses to the works as a result of illegal public transmission, the developer of a hyperlink are likely to be considered as an assessory of the illegal transmission.
