It has been propounded that Internet Service Providers (ISPs) are neutral messengers for internet users’ expressions and thus imposing copyright infringement liability onto them is unfair and will impinge on freedom of expression. With regard to the rapid digital development nowadays, however, this article contends that ISPs should be perceived as undertaking a ‘dual’ role- qua an online expression messenger plus a copyright gatekeeper- as online copyright protection will be infeasible without the ISPs’ dedication. Therefore, it is just to hold ISPs indirectly liable for their failure to perform the gatekeeper role under a range of specific circumstances as long as they are subject to the rigour of a ‘fair’ online copyright regime. Whether such a ‘fair’ regime can be constructed heavily depends on how the Notice and Takedown provisions are drafted and interpreted.
This article envisages the need for copyright law to strike a balance looking after the interests of ISPs, Copyright Owners (or infringement ‘Complainants’) and internet service users (‘Subscribers’) concurrently. The Notice and Takedown mechanism is the tool to maintain the stability of the ISPs’ weighting scale. Taking occasion of the imminent legislative reading of the Hong Kong Copyright (Amendment) Bill (HKCAB), this article will compare its drafting similarities with and disparities from the Copyright Act of the United States (USCA)- the predecessor endorsing the Notice and Takedown mechanism. Such a critical comparison will demonstrate that the Notice & Takedown mechanism adopted in HKCAB is designed in a more subtle manner and thence more conducive than USCA in constructing a fair copyright regime. Nevertheless, it will be further suggested that a more balanced protection for copyright and expression can be achieved by wisely harnessing the copyright registration system.
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