By Maggie Tsai and Albert Su Senior Associate and Partner of Formosan Brothers, Attorneys-at-Law

Nowadays, people are very familiar with the term “YouTuber,” but the term “Podcaster,” to many Taiwanese, is probably still quite new. The word “Podcast” is a portmanteau from the words “iPod” and “broadcast.” Therefore, a podcast is a broadcast that you listen to, with an additional YouTube-like feature that allows you to play on-demand and pause wherever you want. As such, some people who describe it as the “YouTube that you listen to.” Podcasts have been popular outside of Taiwan for years. This year in Taiwan, thanks to several local programs that went viral, podcasts have gained widespread attention and even made many YouTubers switch their battlefield.

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Since it is a YouTube that one can listen to, laws and regulations applicable to YouTube also apply to Podcasts. The most fundamental is the Copyright Act. The music used in the opening or background of the program, or articles or news report being read, are all possibly works protected by the Copyright Act. Without advanced consent from the copyright holder of the music or article, use or public reading of such works may constitute copyright infringement.

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Secondly, well-known podcasters have their faithful followers. One should not underestimate the power of advertisement or product introduction read by podcasters. As such, attracting advertisers to sponsor their programs is a source of income for podcasters. However, when an advertorial or placement marketing is used in a podcast program, one should pay attention to provisions in the Fair Trade Act that is related to a celebrity’s testimonial or endorsement. If the product involves cosmetics, beauty products, or medical effects, one should also be aware of relevant provisions in the Pharmaceutical Affairs Act, the Medical Care Act, and the Cosmetic Hygiene and Safety Act, etc.

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In the event that the content of a program on an Internet service platform involves infringement, what kind of responsibility does the Internet service platform bear? Take as an example platforms such as YouTube and Facebook that allow users to upload, store, and play video content, the Copyright Act does not require these Internet service platforms to examine the content that users upload. However, if copyright holder informs the Internet service platforms of infringement in the uploaded content, these platforms are obliged to remove or make inaccessible to users the alleged infringing content in order to avoid being liable for copyright infringement damage. These type of “take down when informed” provision is also called the safe harbor clause for Internet service platforms.

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When an audience listens to programs through podcast platforms such as Apple Podcast, Spotify, or Google Podcast, they might think those platforms work just like YouTube and Facebook -- that podcasters upload the programs directly to the platform for storage and playback. However, the fact is, pre-recorded podcasts are usually first stored at a content storage platform and later provided by the content storage platform to the playback platform by RSS Feed. That is, the platform that stores the content is actually behind the scene, and the platform that plays back the program actually does not store the content. Thus, whether these two types of platforms meet any of the following four types of Internet service platforms -- “connection service provider,” “caching service provider,” “information storage service provider,” and “search service provider” -- as defined in the Copyright Act, and benefit from the safe harbor clause? This is a question worth pondering.

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Facebook, YouTube, podcast, and OTT are all new business service models derived from the fast development of mobile communication technologies. As such, it will keep bringing new challenges to the scopes set by current regulations on new technologies. The U.S. government recently announced bans against TikTok and WeChat in the interest of national security. The E.U. also launched a full investigation into Google’s Fitbit acquisition. Although the aforesaid examples do not involve podcasts directly, their common feature is “data intensive.” In fact, major international markets have taken many measures with the thought behind which being “data and national security,” “data localization,” and “possible anti-competition behavior caused by a large amount of data.”  

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Compared to a large number of regulations on traditional broadcasting, podcast is a freer platform where business creativity is more likely to flourish. However, on the other hand, one must consider whether such platforms will compromise privacy and data security during the process.

For the purpose of a more precise search, podcast programs are categorized by the collection of user interests, time of listening, location of listening, etc. These data are sufficient to profile the user’s inclinations and personal traits, which is valuable business information. However, do podcast platforms have enough protection on data security and privacy? And who oversees monitoring and control?

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The NCC recently announced a draft of the Internet Video Service Administration Act. This Act does not address media platform services such as podcasts whose main line of business is sharing user generated content (“UGC”). But in this world where everyone is battling for subscription and attention, podcasts are on the rise. As their business model expands, more challenges to legal boundaries are in the foreseeable future.

(This article was published in the Expert’s Commentary column of the Commercial Times.  https://view.ctee.com.tw/legal/22642.html  )

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