TIPS^®  Taiwan Intellectual Property Special

Proposed Amendment to Digital Copyright Protection in Taiwan

In December 1996, WIPO adopted the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms in response to the impact of digital information technology on traditional copyright laws.

Yet the Copyright Law in Taiwan has not been adjusted for responding to the issues arising from development of digital technology. In order to ensure information flow, continue development of e-commerce, and facilitate protection of copyright owners in this new environment, the TIPO has drafted a “Partial Amendment to the Copyright Law,” taking into account the developments of international copyright laws and practice experience. The Draft Amendment is summarized as follows:

1. Inserting provisions concerning “right of communication to the public” and revising the definitions of “public broadcast” and “public performance.”

Article 8 of he WCT provides that copyright owners enjoy a “right of communication to the public,” which includes interactive communications and on-demand communications. Articles 10 and 14 of the WPPT provide that the performers and phonogram producers enjoy the right to make their performances and/or phonograms available to the public. Moreover, the definition of “public performance” in the current Copyright Law in Taiwan is inconsistent with the definition of “public broadcast” in the Berne Convention. Accordingly, provision concerning “right of communication to the public” is inserted and the definitions of “public broadcast” and “public performance” are revised.

2. Inserting anti-circumvention provisions and previsions of digital right management information.

Given a digital environment on the Internet, copyright owners often adopt technical measure to protect their works from unauthorized uses. In addition, copyright owners also attach digital right management information to their digital works in order to trace subsequent distribution or use of such works. To prevent any act of circumventing the technology measures, or erasing or altering the digital right management information, the Amendment adopts the relevant provisions of WCT and WPPT, providing protection to technology measure and the right management information.

3. Amending provisions of “fair use.”

In order to ensure that the general public is certain about the scope of fair use, so as to avoid inadvertent infringement, a mechanism for negotiation between copyright owners and users has been established for determining “fair use” standard. Where the negotiation fails, the parties may seek consultation from the competent authority.

4. Strengthening the effect of the copyright dispute mediation.

Under the current relevant provisions, the decisions of the Copyright Examination & Mediation Committee in mediating copyright disputes only have the effect as civil settlements, and, therefore, are invaluable to the parties. Further litigation may still take place. New provisions are inserted to strengthen the functions of the copyright mediation. Once the mediation process has been concluded and the decision is approved by the court, the parties may not file a separate civil or criminal action for of the same case, and the decision has the same effect as an affirmed civil court decision.

5. Amending the penalty provisions of copyright infringement.

The draft amendment raises the upper limit for civil proceedings. Damages for general infringement can be up to US$ 30,000, while the damages for international and severinfringement can be up to US$ 150,000.

Under the current Copyright Law, infringement of copyright is subjected to criminal liabilities, regardless commercial or not. To avoid the possibility of criminal sanction on unauthorized minor use of copyrighted work, the proposed amendment removes criminal penalties for non-profit-seeking infringement or infringement not reaching commercial scale. The infringement with intent to profit will not only be imposed criminal liabilities, but also subjected to public prosecution. Moreover, provisions for detention and increased fines are inserted, hoping to reduce incidents of infringements short-term detention and greater monetary penalties.