TIPS^®  Taiwan Intellectual Property Special

China Updates

First Court Decision on Internet Downloading

The Taipei District Court recently imposed seven-month imprisonment on three persons for their unauthorized sale of copyrighted works downloaded from a BBS. This is the first criminal decision on the issue of Internet downloading for commercial purposes.

In that case, three persons who were with a system consultation company repeatedly downloaded 18 works by three authors from a BBS of TANET (Taiwan Academic Net). These works were then reproduced and sold, contained in CDROMs, with two issues of the "Hope_Net CD-ROM Monthly", the company's publication, without obtaining a prior authorization from the authors.

The issue is whether a copyrighted work released on a BBS is infringed where its full text is downloaded, reproduced and sold for commercial purposes.

The defendants argued that the authors' release of their works on a BBS showed their decision to allow others to have access to the works and that the defendants' reporting was consistent with the authors' intention. The Office of Prosecutors rejected the argument. It said that a release of works on a BBS should not presume the authors' intention to abandon their copyright, or those who do not want to surrender their copyright would be reluctant to release their works on the net. A forfeiture of copyright would be against the aim of the Internet to promote exchanges of information. The district court also pointed out that works released on a BBS are also under copyright protection.

The defendants also raised the fair use defense, i.e., news reporting under Articles 49 and 61 of the Copyright Law. The district court rejected the fair use defense because the current case differed from news reporting and the defendants' reproduction was purely commercial.