D. “Safe Harbour” provisions limiting the liability of online service providers
The safe harbour regime (Sections 88A-J of the Copyright Ordinance) seeks to provide protection for online service providers’ (“OSP”).
A “service provider” is “a person who, by means of electronic equipment or a network, or both, provides, or operates facilities for, any online services” (see sections 88A and 65A(2) of the Copyright Ordinance). As such, the safe harbour regime is applicable to for example internet service providers, internet information location tools service providers and online storage space service providers.
An OSP would not be liable for copyright infringement on their service platform provided that they meet certain prescribed conditions, including that the OSP has taken reasonable steps to limit or stop the infringement as soon as practicable upon notice or became aware of the infringement and it has not received and is not receiving any financial benefit directly attributable to the infringement (see section 88B(2) of the Copyright Ordinance). An OSP is not required to monitor or actively identify infringing activities on their platforms or remove infringing materials.
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