TIPS^®  Taiwan Intellectual Property Special

Summary of 2003 Copyright Law Amendment

The Legislative Yuan (the Taiwan Cabinet) passed a partial amendment to the Copyright Law in Taiwan (the Amendment) on June 6 2003, which was promulgated by the President on July 9, 2003. The purposes of this Amendment is to cope with the provisions of the WIPO Copyright Treaty (WCP) and the WIPO Performances and Phonograms Treaty, to solve e-commerce related copyright issues, and to combat piracy more effectively. The major revisions include the following aspects:

1. Temporary Reproduction

The Amendment specifically includes temporary reproduction in the definition of “reproduction.” However, the Amendment also explicitly excludes temporary reproduction that is transient, incidental, and as an essential part of a technical process, without independent economic significance, and solely for the purpose of network relay transaction or for the use of lawful works.

2. Distribution Rights and Exhaustion Doctrine

The Amendment codifies the distribution rights for copyright owners and stipulates that the distribution right of a specific copy of a copyrighted work shall be exhausted after the first sale of such copy.

3. Public Transmission Right

The Amendment provides copyright owners with the right of public transmission, offering protections to copyright owners for works transmitted on the Internet.

4. Protection for Digital Copyright Management Information

The Amendment prohibits removal or alteration of digital copyright management information attached to works by copyright owners. The Amendment also exempts the removal or alteration of the same for the purpose of fair use or technical problems.

5. Right to Remuneration for Public Performances

The Amendment provides the right to remuneration for public performance of sound recordings or performances recorded on sound recordings, so that copyright owners of the sound recordings may claim remuneration from public establishments where the sound recordings are used.

6. Liability for Use of Pirated Computer Programs for Business Purposes

The Amendment prohibits the use of illegal copies of computer programs for business purposes. Such use is subject to civil and criminal liabilities. However, personal use will not incur criminal sanctions.

7. Partial Decriminalization for Copyright Infringement

The criminal penalties for infringement of moral rights and for parallel importation are totally removed, as well as infringement not intended for profit, provided that the number of copies reproduced does not exceed five and the total amount of infringement calculated by the market value of lawful copies does not exceed thirty thousand New Taiwan Dollars (about US$ 1000). After the Amendment, criminal penalties only remain where the infringement exceeds the prescribed copies and amount.

8. Public Prosecution for Criminal Copyright Infringement

Vocational and professional infringers, infringement intended for profit, and anyone who manufactures and sells pirated CDs shall be publically prosecuted.

9. Increased Maximum Fine for Criminal Copyright Infringement

While a large portion of criminal penalties is removed, the amount of civil damage awards available is greatly increased to a range of NT 1,000,000 (about US$ 35,000) up to NT 5,000,000 (about US$ 165,000), and other penalties are increased proportionally as well.

10. The Police’s Right to Confiscate Infringing Items

Where an offender escapes in a raid and the police are unable to ascertain the offender’s identity, the police have the administrative authority to confiscate the items used for infringement or derived from the infringement.

Many issues remain unaddressed in this Amendment. For example, the extension of copyright term, from life of the author plus 50 years to 70 years, did not pass because the current term already meets TRIPS requirements. The “anti-circumvention” provisions are not included in the Amendment, either, due to concerns that such provisions may interfere with the public’s right to lawfully access works. Moreover, the criminal laws against interference in computer use should be applicable to solve the circumvention problem. Negotiations between the Taiwan Government and the U.S. Trade Representative to resolve these issues are scheduled, and we will report to you as soon as new developments become available.