TIPS^®  Taiwan Intellectual Property Special

The Copyright Protection for Works of Foreign Authors

The Ministry of Economic Affairs (“MOEA”) on March 13 announced the Draft Bill of Regulation on the Management of CD-R Product (“Regulation”). The MOEA will call for public hearings to review the Regulation and will submit to the Legislative Yuan (Taiwan’s Legislative Branch) in April in order to prohibit the piracy of CD-R products.

Pursuant to the Regulation, the authority in charge of the management of CD-R products, including manufacturing, sales and distribution, is the MOEA. Any company wishes to manufacture CD-R products shall apply, with the MOEA, for the grant of CD-R source identification number, for the approval of CD-R factory, the import and/or transfer of the manufacturing machine before starting to put in practice. Moreover, the Regulation empowers the authority in charge of entering the CD-R factory to inspect the legality of the manufacturing.

The Regulation provides that, should the CD-R manufacturer fail to apply with the MOEA for grant of CD-R identification number, the manufacturer will be punished with a fine of neither less than NT$30,000 nor more than NT$150,000 and the seizure of the CD-R products. If the CD-R manufacturer set up a factory without the MOEA’s approval, the MOEA shall have the right to order the manufacturer to desist further manufacturing and the manufacturer will be punished with a fine of neither less than NT$60,000 nor more than NT$300,000.

It is believed that this Regulation can provide a regime to effectively manage the manufacture and distribution of CD-R products and prevent piracy behaviors.

The Copyright Protection for Works of Foreign Authors

Article 4 of the Copyright Law provides that: “[w]orks of foreign persons that comply with one of the following conditions may enjoy copyright under this Law; provided, where the terms of a treaty or an agreement that has been approved by resolution of the Legislative Yuan provide otherwise, such terms shall govern: 1) Works that are first published in the territory under the jurisdiction of the Republic of China within thirty days after their first publication in the territory outside the jurisdiction of the Republic of China. Provided, this shall only apply to where the country of such foreign person protects the copyright of the works of persons of the Republic of China under identical circumstances, and such protection has been verified. 2) Where by treaty, agreement, or under the domestic law, regulation or practice of a foreign country, works of persons of the Republic of China enjoy copyright in such country.” In order to clarify the application scope of the above provision, the Intellectual Property Office of the Ministry of Economic Affairs announced on February 22 the explanation of the application as follows:

1. In compliance with Paragraph 1, Article 4:

1) The countries which can be categorized as in compliance with “first publication” and “within 30 days” provisions are Mauritius, Sweden, Japan, Norway, Brazil, Austria, Costa Rica, Finland, Malawi, Ecuador, Holland, Argentina, Belgium, Salvador, Bolivia, Madagascar, Australia, Malaysia, Philippine, Republic of Dominica, Peru, Germany, Tonga, Denmark, Singapore and Poland.

2) The countries which can be categorized as in compliance with the “first publication” provision are Trinidad and Tobago, Turkey and Kingdom of Jordan.

3) The country which can be categorized as in compliance with the “first publication” and “within 14 days” provision is Canada.

2. In compliance with Paragraph 2, Article 4 regarding “reciprocity”:

The countries which provide reciprocal copyright protection to Taiwan are the United States, New Zealand, United Kingdom of British, Switzerland. Moreover, the works of Spanish who lives in Taiwan and Taiwanese who live in Korea will also be protected under the Copyright Law.

3. In compliance with the exception provision of Article 4 with respect to “a treaty or an agreement that has been approved by resolution of the Legislative Yuan”:

1) Works that are first published in the United States, or are published in the United States within thirty days after their first publication in the territory outside the United States.

2) Works that are first published in the territory of member state of Berne Convention or World Copyright Treaty, and the such works are distributed within the territory of Taiwan or the United States, and the copyrights of such works are owned by the following person(s):

i) The citizen of the United States or Taiwan.

ii) The legal entity which an American or a Taiwanese owns the corporate shares of more than 50%.

iii) The legal entity which is directly controlled by an American or a Taiwanese.

iv) The branch office or subsidiary owned by an American or a Taiwanese.

3) The author has a domicile in the United States.

4) The author has a domicile in Taiwan.