On May 4, 2010, Chile adopted a new law (ES) (EN) regulating Internet Service Providers’ liability for online copyright infringement. The law requires a judicial order before Internet service providers (ISPs) are required to take down allegedly copyright-infringing material from websites, block access to an allegedly infringing website, disclose customer information, or terminate customers’ Internet accounts.
The 2010 Intellectual Property Act implements Chile’s obligations regarding Internet Service Provider regulation in the 2004 U.S. – Chile Free Trade Agreement.
Notice and Takedown
In general terms, the Act mirrors the approach taken in the U.S. Digital Millennium Copyright Act. It creates four safe harbors for network service providers. If Internet service providers comply with the conditions set out in the legislation they are exempt from financial sanctions arising from copyright infringement claims. However, Internet intermediaries are still subject to injunctions, and other reasonable judicial measures aimed at blocking online access to particular alleged copyright-infringing content.
The law provides safe harbors for four types of activities of Internet service providers: providing data transmission, routing or connection services (Article 85 M); providing temporary data storage or caching (Article 85 N); storing data in their network or system at the request of users or on behalf of third parties (Article 85 Ñ); and performing searches, providing links or referring users to an online site by using information location tools, including hyperlinks and directories (Article 85 Ñ).
In order for a data hoster or location tool provider to qualify for the safe harbor from from liability, it has to comply with various conditions including that the ISP: (a) has no actual knowledge of the unlawful nature of the data, which is defined to mean that it has not received an order from a competent court directing it to remove or disable access to particular content; (b) does not receive a financial benefit directly attributable to the infringing activity, in circumstances where it has the right and ability to control such activity; (c) publicly designates a representative to receive the notifications as set forth in the regulation; and (d) expeditiously removes or disables access to the stored material upon receiving notice. In addition, these ISPs must also meet certain other conditions, including: (i) adopting a general public policy providing that it has the authority to terminate the agreements entered into with content providers *declared* repeat infringers by court resolutions; (ii) not interfering with technological and rights management measures relating to copyrighted material that are widely accepted and lawfully used; and (iii) not having initiated the transmission, nor having selected the material or its recipients. The Chilean Act exempts ISPs who perform searches or link or refer users to an online site by using information location tools from this last obligation.
Chile’s ISP law has a unique feature that sets it apart from other simllar regulatory frameworks in other countries (and in particular, in countries that have incurred obligations to regulate ISPs in a particular manner because of Free Trade Agreements with the United States). It’s notice and take down procedure is subject to a final review by a judge, rather than left to the individual ISP’s discretion. This framework is grounded in Chile’s human rights obligations as a signatory of the San Jose Pact and as a Member of the Organization of American States. (See the "Human Rights and Internet Intermediary Regulation in Chile" page for more in-depth analysis on this issue.)
Article 85 Q sets out the notice and takedown procedure that Chilean ISPs must follow in order to qualify for the safe harbors. Finally, Article 85 R of the Act sets out the preliminary measures that a court may order an ISP to take, including removing or disabling access to particular content; and the termination of accounts of declared repeat infringers. Article 85 Q expressly requires petitions for such orders to clearly and specifically identify the relevant content to minimize harm and the possibility of restricting access to legitimate content.
Chilean law does not require ISPs to adopt a Three Strikes regime. However, Article 85 O of the Act provides that ISPs must establish general and public conditions under which they have the authority to terminate agreements entered into with content providers declared repeat infringers in the event that a judge determines that a particular subscriber or account holder is a repeat infringer of copyright.
Internet service providers are only required to provide information about the identity of customers that they allege have engaged in copyright infringement on receipt of a court order. Article 85 S of the 2010 Act states that a judge may order an ISP to disclose the name and address of an alleged infringer to a rightsholder that has filed a lawsuit alleging infringement.
Processing of the data that is disclosed shall be subject to the existing 1999 data protection and privacy law. Although Chile is a member of the Organization of American States, protects privacy under Article 19 of its Constitution, and has existing laws governing privacy and protection of data, these have been criticized for the inadequate protection they provide.read more...
Copyright holders can seek preliminary or permanent injunctions from courts, requiring ISPs who provide data transmission or connection services to "adopt reasonable measures" to block access to particular infringing content, provided that the blocking does not disable access to other legal content.
Article 85 R requires Chilean courts to decide these cases in a summary procedure, taking into account the relative burden of orders sought on the Service Provider, Internet users and subscribers; the potential harm to the copyright owner; the technical feasibility and effectiveness of the order sought; and whether a less burdensome enforcement mechanism is available. Courts can decide applications for preliminary injunctions without the affected content provider being present so long as the copyright holder posts a security bond to compensate for any losses inappropriately incurred to the blocked site. Courts must provide an affected content provider an opportunity to oppose a permanent injunction affecting its website.read more...