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Intellectual Property and Commercial Court


2009 Xing Zhi Shang Geng (Yi) No. 16

Decision No. 2009 Xing Zhi Shang Geng (Yi) No. 16
Date July 23, 2009
Decision Highlight

The Limitation on the Doctrine of Medium Neutral: Though, medium providers provide advanced technology to make copyright owners’ works be widely distributed in the markets of such works, and to let general people in the society (including potential follow-up authors and general consumers) to easily contact such works and, therefore, to conveniently and quickly use them, so that the medium providers can make big money by that way because of the more frequent use of their products or services. … Although the Doctrine of Medium Neutral permits the practice of new technology without constraints, it is not true that there are no limitations on such practice. In some situations, we can impose limitations. Particularly for the digital content industry, the most struggling situation is that high-valued digital works are reproduced, transmitted and distributed almost without costs. How can we take advantage of internet without suffering from the negative impact? While the economic conflict between copyright owners and medium providers is more and more serious because of the technology development, how can we prevent the injuries caused by constraining creators and limiting technology innovators? To balance the copyright protection and technology development, both of which are conflicting to each other, the Doctrine of Medium Neutral is applicable only if such medium providers play a neutral role of merely providing technology, meaning that they are only a channel of providing technology. The medium providers cannot assert the Doctrine of Medium Neutral to relieve themselves from the liabilities when the requirements of the relevant responsibility imposed on them have been met. The clear cut of whether to apply the Doctrine of Medium Neutral or to impose liabilities on copyright infringers should depend on not only the characteristics of how the media are utilized objectively, but also the behaviors and subjective intents of the medium providers. First, the court should determine whether the objective utilization of such medium is possible. That is, the court will ask in addition to infringing use whether there is other substantially lawful use. Then, if only infringing use exists, the court will go on to determine whether the elements of copyright infringement have been met. Otherwise, if substantially lawful use and infringing use coexist, the court will determine whether the medium providers are in a neutral role to provide the medium at dispute. Then, if yes, the Doctrine of Medium Neutral is applicable. Medium providers are relieved from the liabilities arising from copyright infringement, so that they are still encouraged to distribute works and to transmit the contents of such works, which are their function. However, if such neutral role has vanished, the court should further consider the relevant elements of liabilities caused by infringement. In terms of objective acts, the court should look at whether the users treat the medium as a tool of infringing copyright, whether any cause and effect exist between the medium-providing acts of the medium providers and the infringing acts of the users, and other objective elements regarding liabilities caused by infringement. In terms of subjective requirements, the court should consider whether the medium providers know or should have known the existence of the infringing acts.

Related Provision Copyright Act: Art. 87, Para. 1, Cls. 2, 7; Art. 90-4 – 90-12; Art. 91, Para. 1; Art. 92; Art. 93, Cl. 4
  • Release Date:2020-11-13
  • Update:2021-07-20