TIPS^®  Taiwan Intellectual Property Special

Abolition of Continuous Offense – Its Impact on Criminal Liability for IP Infringement

The Criminal Code in Taiwan provides a “continuous offense,” which means, “if several successive acts constitute like offenses, such successive acts may be considered to be one offense, but the punishment prescribed for such offense may be increased up to one half.” The recent Amendment to the Taiwan Criminal Code, passed on January 8, 2005, abolishes the “Continuous Offense.” We will examine the “continuous offense” and how its abolition influences the criminal liability for copyright and trademark infringement.

Under the current “successive offense” provision, if an offender, based on single criminal intent, commits several successive acts that violate the same legal interest and constitute the same of criminal offense, the offender will only be punished as if only one criminal act had been committed, with severer penalty though. For example, a printing company takes an order to print 5,000 a novel of a popular author, knowing that the printing is not authorized by the copyright owner. It later takes orders to print 5,000 copies of a celebrity’s autobiography, knowing that the printing is not authorized. Besides, it also takes orders to print a textbook of a renowned law professor, also without consent of the copyright owner, and the printing company is aware of that. Such acts are based on single criminal intent, and violate the same legal interest, i.e. copyright. It should be considered as “Successive-Offense” and be punished as if the printing company only had committed one copyright infringement with punishment increased up to one half. For copyright infringement by the way of reproduction, an offender will be published up to 5 years in prison. Under the “successive offense” provision, the printing company constitutes only one copyright infringement, but its penalty will be increased by 50%, i.e. up to 7 years and 6 months in prison, no matter how many times it takes orders to print copyrighted materials without authorization from the copyright or trademark owners. However, the “successive offense” only covers acts found before the conclusion of the pending litigation for the successive offense, and any act found after a final judgment will constitute a separate offense.

Since the “successive offense” constitutes several offenses in nature, based on the criminal justice, the recent Amendment to Taiwan Criminal Code abolished the “successive offense.” The printing company in our example will constitute 3 counts of copyright infringement, and the sentence will no longer capped with a 7-and-half year term. The criminal penalties for copyright and trademark infringement have long been criticized as being not severe enough. The abolition of the “successive offense” will offer the judges more discretion in sentencing based on the circumstances surrounding the crimes. It is expected that the new practice will affords more deterrence effect to the infringement activities and provide more protections to the copyright and trademark owners. The Amendment has yet promulgated and it will take effect after one year following its promulgation.