New liability regime for ISPs
The IP Law Modification incorporates awhole new chapter III to Title IV of the IPLaw, following very closely the IP chapterof the Free Trade Agreement signed between USA and Chile. For the first time the law provides for certain limitations to ISP’sliability in case of IP violations committedthrough their networks and systems. Application of these new rules shall be without prejudice of the application of the generalrules on civil liability.
IP Law Modification sets a new rule, uponwhich the ISPs shall be exempt from having to compensate IP rights owners incase of damages suffered by these ownersdue to actions committed through the ISP’snetworks, provided the ISPs fulfill certainconditions. These conditions may vary depending on the service provided.
In order to fall into this safe harbor framework, ISPs must:
a) Have established public and generalterms upon which they may exercise their right to terminate their agreements withcontent providers that are judicially qualified as repeated offenders against the IPrights protected by law;
b) Not interfere with the technologicalmeasures of protection and rights management of protected works that are widelyacknowledged and legally used, and
c) Not have generated nor have selected the content or its addressees. Additionally, said ISPs must adhere to other conditions, specific for each servicethey provide. For said purpose, the lawdistinguishes between:
a) data transmission, routing or connection supply service providers;
b) temporary automatic data storage; and
c) service providers that, upon user request, store data in their networks orsystems, either by themselves or third parties, or provide services that include search, linkage or reference to Web sitesby means of search engines, includinghyperlinks and directories.
In order to properly observe the constitutional rights of privacy and safety of communications, a prohibition of surveillance oroversee data is also imposed. Service providers are not required to perform activesearches of illicit activities nor supervisethe content of data transferred, stored or referenced.
A special, brief and summary proceeding isalso set forth in order to safeguard IP rights against violations committed through networks or digital systems. These proceedingsinclude measures destined to withdraw, disqualify or block infringing content in theISP’s network or systems. In this matter, Chilean law opted for the judicial notificationsystem, a process in which the order to withdraw contents from the web is preceded by ajudicial analysis of the existence of anyinfringement. This system is different fromthe American notification system, uponwhich the affected party may notify the ISPof the existence of the violating content.
The law also provides for the right of IPowners to judicially request the delivery ofnecessary information to identify the provider of infringing content.
If you have any questions regarding the matters discussed in this memorandum, please contact the following attorneys or call your regular Carey contact.
+56 2 2928 2612
This memorandum is provided by Carey y Cía. Ltda. for educational and informational purposes only and is not intended and should not be construed as legal advice.
Isidora Goyenechea 2800, 43rd Floor.
Las Condes, Santiago, Chile.