Amendments to Articles 14, 27 & 41 of Integrated Circuits Layout Protection Law
Amendments to Articles 14, 27 and 41 of the Integrated Circuits Layout Protection Law ("ICLPL") were promulgated by order of the President on June 12, 2002. Main points in the aforementioned amendments and reasons for amendment are set out as follows:
1.Stipulate that those who have not yet complied with statutory procedures may do so within a prescribed period. The current Article 11 of the relevant Enforcement Regulations provide that where a circuit layout applicant fails to submit application documents in accordance with the set procedures, the competent authorities shall notify the applicant to submit the relevant documentation within a prescribed period; failure to do so means the application will not be accepted. As this provision affects rights and interests of the public, the Law of Administrative Procedures requires that there be a proper legal basis for such a provision. Accordingly the provision was moved to the main ICLPL (amended Article 14).
2.Stipulate that where there is an application to revoke circuit layout registration, the registrant shall be given an opportunity to reply within a prescribed period. Article 18, Paragraphs 4 and 5 of the relevant Enforcement Regulations provide that where an application for revocation of circuit layout registration is filed, the competent authorities is required to notify the relevant parties, allow the registrant an opportunity to reply within a prescribed period, and extensions to such period by written request. As these provisions affect rights and interests of the public and involve important matters that should be expressly stipulated by law, the Law of Administrative Procedures requires that there be a proper legal basis for such a provision. Accordingly the provision was moved to the main ICLPL (amended Article 27).
3.Insert date for commencement of the amendments. The present provisions state that "this Law shall enter into force six (6) months after promulgation". However, in light of the amended Law of Administrative Procedures, the amendments should enter into force on the promulgation date. Accordingly, Paragraph 2 to Article 41 is inserted to state: "the amendments to this Law shall enter into force on date of promulgation" (amended Article 41).
Draft Partial Amendments to Copyright Law (IPO Version)
Since its first promulgation and taking effect on May 14, 1928, the Copyright Law has undergone a great number of amendments in 1944, 1949, 1964, 1985, 1990, 1992, 1993, 1998 and 2001 respectively. In recent years, information digitalization and the Internet have created innumerable possibilities for global communication and electronic commerce; but at the same time, they also represent unprecedented challenges for copyright protection. The question of whether traditional copyright regimes can adapt to such speedy and widespread information transfer mechanisms has become a great global concern. Therefore, a significant issue for international copyright laws is how to protect the rights and interests of copyright owners, while ensuring that the public can have free access to information, so as to allow continual advancements in technology. In December 1996 the World Intellectual Property Organization (WIPO) adopted two international treaties, being the "WIPO Copyright Treaty" (WCT) and the "WIPO Performances and Phonograms Treaty" (WPPT), in response to the impact of digital information technology on traditional copyright laws. The ROC Copyright Law currently in force on the other hand has not yet fully adapted to issues created by digital information technology.
In order to ensure free information flow, continued development of E-Commerce, as well as protection of copyright owners in this new environment, the IPO recognizes a need to revise the Copyright Law currently in force. Taking into account developments in international copyright laws as well as practical experience, the IPO has drafted "Partial Amendments to the Copyright Law" and has submitted the same to the MOEA for consideration. These amendments consist of revisions to 28 articles, insertion of 8 new articles, and deletion of 1 article. Below is a summary of these amendments:
1.Insert provisions concerning "right of communication to public", and revise definitions of "public broadcast" and "public performance":
Article 8 of the WCT provides that copyright owners enjoy a "right of communication to the public", which includes interactive communications as well as on-demand communications. Articles 10 and 14 of WPPT provide that performers and phonogram producers enjoy the right to make their performances and/or phonograms available to the public. In the Copyright Law currently in force, the definition of "public performance" in Sub-paragraph 9, Paragraph 1 of Article 3 is inconsistent with the definition of "public broadcast" in Article 11-1 of the Berne Convention; accordingly, provisions concerning "right of communication to the public" are inserted, and definitions of "public broadcast" and "public performance" are revised. In order to maintain certainty in the law, these definition revisions will not have retroactive effect.
2.Insert provisions concerning technical protective mechanisms & electronic rights management information
Given an environment of digital and Internet technologies, copyright owners often adopt technical protective mechanisms in order to protect their works from unauthorized usage. Although acts in attempt to circumvent or decode such mechanisms are not direct infringements of copyright, they are nonetheless abetting infringements of copyright and should be prohibited. Article 11 of the WCT and Article 18 of the WPPT both require countries to take appropriate legislative measures in these circumstances, so as to protect owners' copyright and offer effective legal remedies.
In addition, owners frequently have electronic rights management information in respect of their works; if such works are then erased or altered, or distributed knowing they have been erased or altered, it will represent substantial damage to the owners. Therefore, Article 12 of the WCT and Article 19 of the WPPT both require appropriate protection and remedies be enacted in these circumstances. Therefore, these provisions have been inserted to protect the rights of copyright owners.
3.Amend provisions relating to "reasonable use"
In order to ensure that the general public is aware of what constitutes a "reasonable use", so as to avoid litigation, a mechanism for negotiation between copyright owners and users has been established for determining a set of standards for "reasonable use". Where negotiation fails, the parties may apply to the competent copyright authorities for comments.
4.Insert provisions concerning registration of assignment or trust in respect of plate rights:
Article 4, Paragraph 1 of the Trust Law stipulates that: "Where a property right that should be registered is the subject matter of a trust, then unless such trust has been registered, it is ineffective as against a third party." While the present Article 79 of the Copyright Law requires plate rights to be registered, there is no requirement for registration of plate right assignments or trusts. Therefore provisions concerning registration of plate right assignments and trusts are inserted. In addition, in order to ensure that this system of "public notice" will be fully effective, it is necessary to make these registration provisions retroactive.
5.Strengthen binding force of copyright or plate right dispute mediations
Copyright dispute matters require high levels of expertise. Members of the Copyright Examination & Mediation Committee are all expert professionals, and their decisions are no less professional than mediations by the arbitration tribunal or county mediation committees. Therefore adoption of their mediation decisions will greatly reduce the time spent on civil and criminal litigation between the parties, and reduce workload of the judiciary. However, so far decisions of the Copyright Examination & Mediation Committee in mediating copyright or plate right disputes only have the force of civil settlements, and are undervalued by the parties, with the result that further litigation may still take place. In order to strengthen the Committee's mediation function, new provisions in the Copyright Law are inserted, stipulating that mediation decisions of the competent copyright mediation authority are to have equal force as affirmed civil judgments by the court, so that once the mediation process has been concluded and approved by the court, the parties may not file a separate civil or criminal suit in respect of the same case.
6.Amend penalty provisions concerning infringement of copyright and/or plate right
Articles 41 to 43 of WTO's TRIPS Agreement require members to effectively prevent and stop acts of infringements on intellectual property rights and any further damage. In order to ensure copyright owners are fully compensated by civil damages, the Copyright Law amendments propose an upper limit for civil damages that may be awarded by the court in civil proceedings. Damages for general infringement can be up to NT$1 million, while in intentional and serious cases damages can be up to NT$5 million.
With regards to infringement of copyright, the first paragraph of Article 61 of TRIPS provides that, "Members shall provide for criminal procedures and penalties to be applied at least in cases of willful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity." TRIPS requires the criminal penalties be applied in respect of willful, commercial scale infringements; however, for non-commercial-scale infringements, civil remedies would appear to be sufficient without the need for criminal sanctions. As for cases where commercial gains are not intended but there is commercial scale resulting in serious damage to the copyright owner, criminal sanctions are still appropriate.
Accordingly the related provisions concerning criminal sanctions for infringements are amended, providing for separate penalties for infringements with intention to derive profits, and infringements without intention to derive profits but are on a commercial scale. Article 100 of the amended provisions also provided that cases where there is intention to derive profits are to be non-complaint based. Provisions for detention and increased fines have also been inserted, so as to effectively reduce incidents of infringements by short-term detentions and greater economic penalties.
As for infringements of moral rights, infringement by way of failure to erase reproduced back-up copies of computer programs, reasonable use of another person's works but failing to identify the source, and all infringements plate rights, these acts will not be regulated by Chapter 7 of this Law (amend Article 88 Paragraph 3, Articles 91 to 93, 95 and 100; delete Article 96).
IPO Updates Biotech, Pharmaceutical & Chinese Medicinal Patent Database
The IPO had on May 24 updated its "Biotechnological, Pharmaceutical and Chinese Medicinal Patent Database" with 1,000 new items of biotechnological information and 1,326 items of information related to Taiwanese flora, which will be available for public searches. The website of the Database is: http://biotech.moeaipo.gov.tw/bin/count.exe.