With the advances and prevalence of internet technology, consumers have gradually migrated from television to online video platforms, such as YouTube, DailyMotion, etc., to access audio-visual contents. Some of the companies (referred to hereunder as app service providers) develop and then provide users with apps designed to help users access audio-visual resources on online video platforms. By downloading such apps on their smart phones, users can readily access the most popular TV dramas or movies at anytime, anywhere. However, in the event that unauthorized copyrighted materials (such as unlicensed video contents) on online video platforms are made available through these apps, it is not clear what liabilities app service providers should be subject to. A recent judgment made by Taiwan’s IP and Commercial Court (case no. 110-Shing-Zhi-Shang-Yi No. 6) sheds more insights on the Court’s position on this issue.
The aforesaid judgment concerns a copyright dispute between OH!COOL CO., LTD. (“OH!COOL”) and GARAGEPLAY INC. (“GARAGEPLAY”). OH!COOL developed and provided an app that could automatically scrape and compile the hyperlinks that direct users to third parties’ websites on which unauthorized video contents are accessible, so that app users can easily locate and watch such video contents.
The Complainant, GARAGEPLAY, alleged that OH!COOL infringed its public transmission right by providing hyperlinks that direct the app users to access unauthorized copyrighted movies, i.e., the “Train to Busan” and “Seoul Station”, which had been uploaded by an unknown third party to the platform known as “DailyMotion”.
The Court held that the public transmission right is not infringed by provision of a hyperlink, as this action merely involves providing a link for browsing a pre-existing and publicly accessible online material. In this case, the one who infringes the public transmission right is the one who uploaded the unauthorized movies to the platform and made them accessible to the public, rather than OH!COOL. Besides, the Court found that no evidence showing there was conspiracy between the unknown third party (who uploaded the unauthorized movie) and OH!COOL, and thus, the complaint that OH!COOL is guilty for jointly infringing GARAGEPLAY’s copyright was dismissed.
However, based on the following reasons, the Court found OH!COOL guilty of aiding the unknown third party who infringed GARAGEPLAY’s copyright:
- The hyperlink that OH!COOL scrapes and extracts would link the app users to a video platform where most of the uploaded audio-visual contents involve unauthorized copyrighted materials. OH!COOL is aware of such fact, and understands that the hyperlink it provides may direct the app users to a website hosting unauthorized copyrighted materials.
- OH!COOL’s service is culpable because it significantly increases the damages inflicted upon GARAGEPLAY’s copyright by facilitating the app users’ access to the unauthorized movies through the hyperlinks provided by OH!COOL’s app.
OH!COOL argued that it is merely a search service provider, and should be exempted from liability in accordance with Article 90-8 of Copyright Law. The Court disagreed, indicating that the asserted exemption under Article 90-8 applies to “search service providers” and they refer to those who “provide search/link services through supplying indices, references, or hyperlinks to online information.” Here, the sole and only purpose of OH!COOL’s app is to scrape, compile, and arrange hyperlinks through which users could access video contents. OH!COOL does not meet the definition of search service provider because it provides no search service with respect to online information other than links to the infringing video contents. Thus, the Court ruled that OH!COOL is not eligible for exemption as a search service provider.
Based on the above reasoning, the “search service provider” exemption under the Copyright Law is not applicable to app service providers that supply and compile hyperlinks only to facilitate users’ search and access to video contents. Additionally, when evidence clearly shows that an app service provider knows the hyperlink it offers is highly likely to link users to a website that contains unauthorized copyrighted materials, the app service provider may be guilty as an accomplice. To avoid infringement liability, app service providers whose businesses involve the application of similar technology shall be cautious about the source of the contents they make available.