TIPS^®  Taiwan Intellectual Property Special

Uses of Copyrighted Works on the Internet

The development of Internet poses unprecedented challenge on the copyright protection. The TIPO illustrated the relationship between various uses of copyrighted works on the Internet and potential copyright infringement problems.

1. The Legal Framework

According to Article 22 of Copyright Law, reproduction is an exclusive right belonging to the copyright owners. To upload, download, forward, post, or re-post copyrighted works is a reproduction, so is saving copyright works on a hard drive, floppy disk, CD-ROM, ROM, WORM, MO, RAM, and so on. Moreover, on-line transmission may also constitute reproduction, e.g. transmitting commercial software. In addition, use of freeware and shareware is not without restriction. Transferring freeware beyond the scope of authorization or transferring shareware after authorized period and without registration or royalty payment may be infringement of copyright owners’ reproduction right. Compiling copyrighted works into a file, in addition to the reproduction right, may also infringe the copyright owners’ right of compilation. Making excerpts of the copyrighted works on BBS, in addition to infringement of reproduction and compilation rights, may also constitute infringement of copyright owners’ exclusive right to make derivative works and moral rights.

2. Guideline for Use of Copyrighted Works on the Internet

(1) For BBS Operators:

i. The operators of BBS should declare that “Content on this BBS may be re-posted else where". Any person who does not want he/her work to be re-posted should state clearly or marking ‘re-post is not allowed.’”

ii. Before making excerpts from the copyrighted work on the BBS, permission to reproduce, to compile, and to make derivative work should be obtained from the copyright owners. Moreover, the authors’ names should remain and the content of works should not be altered. Otherwise, such action will constitute copyright infringement.

iii. Providing service for users to illegally upload others’ copyrighted works is infringement of copyright.

iv. Leaving copyrighted works on the Internet for the public to download, with knowledge that such works were illegally uploaded, is deemed to be copyright infringement.

(2) For General Users

i. A work in public domain does not have copyright protection. Everybody is entitled to use it for free. However, the author of such a work still enjoys moral rights, such as right of disclosing the work to the public, right of attribution, and right of integrity.

ii. Any use that falls into the scope of fair use provisions (Article 44-Article 66 of the Copyright Law) does not need permission from the copyright owners.

iii. If the work is not in the public domain, and the use is not in the scope of fair use, permission from the copyright owner should be obtained before using such a work.

3. In addition to the civil liability imposed by Articles 84, 85, and 88 of Copyright Law, according to Articles 91-95, copyright infringement may be a criminal offense, sentenced from 6 months to 5 years with fine up to NT$ 300,000 (about U.S.$ 9100). A person who commits the above-mentioned criminal offenses as a vocation may be sentenced between one year and 7 years with fine up to NT$450,000 (about U.S.$ 13,600).