TIPS® Taiwan Intellectual Property Special Copyright Negotiation Status between the U.S. and Taiwan
On October 11, 2002 Taiwan and the U.S. engaged in negotiation and discussions concerning 27 suggestions made by the U.S. relating to Taiwan’s draft Copyright Law amendment. After the negotiation and discussion, the parties had reached an understanding on all of the requests, except the following 4: (1) extending the copyright duration to life of the author plus 70 years; (2) by legislation, giving the Customs the authority to initiate, ex officio, investigation and detention of goods in infringement of copyright; (3)&(4) shorten the 2 year transitional period for retroactive protection under Article 106-2 and 106-3 of the Copyright Law.
Among the requests made by the U.S., the “temporary reproduction” provisions are the most controversial. The U.S. requested Taiwan codify “temporary reproduction” related provisions in Copyright Law. Taiwan insisted that “fair use” should be incorporated as well. The U.S ultimately agreed with Taiwan’s position. The TIPO indicated that, pursuant to the understanding of international copyright treaties, “temporary production” is in fact “reproduction” under the Copyright Law. However, it may be a fair use, and therefore should not be infringement per se. For example, information may be temporarily stored on servers or RAM when a user is browsing on the Internet. While this behavior constitutes reproduction, it has also been considered a fair use, not infringement. The European Union passed in May 2001 a Copyright Directive, which provided in Article 5 that “temporary reproduction” in an online data base transaction process is within the scope of fair use and is legal. Similarly, uses for personal, library or educational purposes without direct or indirect intent to profit are also considered within the scope of fair use, and therefore will not constitute copyright infringement.
The TIPO pointed out that Taiwan intends to adopt the European Union legislative model in determining the scope of fair use. Further amendment will take into account the users’ right to use copyrighted works and will not increase unjust civil or criminal liabilities on the public.
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