Monday, September 5, 2011

Landlord Liability in SE Asia

Landlord liability for IP infringement has been a longstanding issue in Asia. See here, for IP Komodo's cousin IP Dragon's blogs on the issue in China.

Thailand, according to a Tilleke & Gibbons article
here, has no statutory provisions, nor any caselaw on the issue.  But the Penal Code whilst not explicitly covering secondary (vicarious or contributory) liability does provide for liability as a supporter for assisting or facilitating a crime. This is argued to create liability if a landlord takes no action after notification. But now there are draft laws pending with the Department of Intellectual Property to provide specific landlord liability provisions which could codify landlord liability.

In Indonesia types of secondary liability exist in the Criminal Code. Article 55 and 56 of the Criminal Code mention participation in punishable acts. The law provides that anybody who with others deliberately provides an opportunity, means or information for the commission of a crime may also liable for the act itself.

Indonesian Civil Law provides clearer liability. The law does not identify secondary liability but a Landlord's act in contributing to infringement may be considered as an “unlawful act” under Article 1365 of Civil Code. Article 1366 creates liability for illegalities caused by omission to act and imprudence (so potentially allows liability for landlords on notice). Article 1367 covers damage caused by the acts of the persons under his responsibility or supervision (again possibly a landlord’s tenants). However, liability may cease if the party can prove that they have taken necessary steps to prevent it and the current act could not be prevented by them – so a way to force Landlords to put pressure on tenants.

These arguments are used in warning letters to Landlords although no cases have supported them yet.

The Philippines also does not have any statutory provisions or jurisprudence on landlord liability for IP infringement. However, the Philippines House of Representatives passed a bill to amend certain copyright provisions of the Philippine Intellectual Property Code (“IP Code”) and a similar bill has been drafted at the Senate but not yet passed. It provides for secondary liability for entities benefiting financially from the infringing activity of others. These entities are made expressly liable for infringement if they were given notice of the infringing activity and has the right and ability to control the activities of the other person committing the infringing activity. 

The IP Code does have theoretical liability for landlords of “aiding and abetting” but the IP Code fails to define this and there has been no ruling on it. The Civil Code also provides general liability for negligent acts (Article 20) but this catch-all provision is hardly used to enforce rights since it is too general. The penal code rules on accomplices and accessories doe snot applied to special crimes such as violation.

So the signs that landlord liability is on the way across the emerging markets of SE Asia are increasing. The laws are either there or on the way, and in some cases being asserted, so IP Komodo now eagerly awaits a case.

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