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date: 02 June 2020

Abstract and Keywords

This chapter compares the intermediary liability rules of six major Asian countries and highlights how there seems to be confusion on their nature, although the commentators of all countries describe their respective rules as ‘safe harbours’ resembling section 512 of the US Digital Millennium Copyright Act. The chapter describes how China and South Korea inadvertently created a liability-imposing rule instead of a liability-exempting rule. Further, the chapter reviews India and Japan’s statutes that set out liability-exempting regimes closely resembling the EU e-Commerce Directive. India’s 2011 Intermediary Guidelines generate a strong cloud of obligations on intermediaries that threatens to convert the whole system into a liability-imposing one. However, that threat had an impact on the jurisprudence with the 2013 Shreya Singhal decision making the Indian system one of the world’s safest harbours. This chapter further discusses the importance of distinguishing between a liability-imposing rule and a liability-exempting one in the light of other Asian examples. Indonesia’s safe harbour draft regulation announced in December 2016 seems to move towards the dangerous model of both China and South Korea. Malaysia’s copyright notice and takedown appears to follow the US model closely but has a structure that allows the same misunderstanding made by South Korean regulators.

Keywords: China, India, Indonesia, Japan, Malaysia, South Korea, online intermediaries, safe harbour, liability

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