本 期 提 要 HEADLINES
First Draft of Amendments to Copyright Intermediary Organization Regulations
In line with the amended Copyright Law (promulgated November 12, 2001 by order of the President) and the new Law of Administrative Procedures (effective January 1, 2001), the IPO has proposed "Partial Amendments to the Copyright Intermediary Organization Regulations" and held a second public hearing on June 24, 2002 to solicit public comments. Main points of and reasons for the amendments are set out below:
1.Change the competent authority to the Ministry of Economic Affairs, and the copyright authority will be specifically responsible for related matters;
Pursuant to the Intellectual Property Office Organization Regulations (effective November 4, 1998), the IPO was formed on January 26, 1999. Accordingly matters related to copyright fall within jurisdiction of the IPO.
2.Expand criteria for members to copyright intermediary organizations, so that exclusive licensees may also be members;
Pursuant to Article 81, Paragraph 2 of the amendments to Copyright Law, "Exclusive licensees may also become members of copyright intermediary organizations." Therefore, membership criteria for such organizations are expanded to include exclusive licensees.
3.Copyright intermediary organization should be founded by copyright owners, and the threshold for number of founders has been raised;
Article 4 of the Copyright Intermediary Organization Regulations currently provides that: "In respect of establishment of intermediary organizations, founders shall submit application forms to the competent authorities for approval." Only copyright owners may become a founder, pursuant to Article 4, Paragraph 1, Subparagraph 1 of the. Regulations However, the amendments propose that exclusive licensees may also be members of a copyright intermediary organization. In order to ensure that exclusive licensees will not be misconstrued as also qualifying for becoming founders of such an organization, the provision "founders shall submit application forms" is amended to become "copyright owners shall be founders", so as to avoid misunderstandings.
In addition, as there is an excessive number of approved copyright intermediary organizations in Taiwan, users often have to negotiate with two or more organizations, resulting in difficulties in negotiating usage rights. In order to avoid this situation, the threshold for number of founders has been raised to 200.
4.Delete provisions in these Regulations as to assessment of license fees;
Pursuant to Article 82, Paragraph 1, Subparagraph 1 of the Copyright Law amendments, provisions related to assessment of license fees by the Copyright Examination & Mediation Committee are deleted. Accordingly provisions related to submitting license fees for assessment are also deleted.
5.Insert provisions related to matters that shall be stipulated in articles of association of an intermediary organizations, in order to meet the needs of the organization;
Given principles of self-regulation and the fact that the Copyright Examination & Mediation Committee will no longer assess license fees determined by intermediary organizations, matters set out in Article 15, Paragraph 3, Subparagraphs 2 to 4 of the current Copyright Intermediary Organization Regulations (being related to payment and apportionment of license fees, rate of the fees, rate or amount of management fees, amendments to individual license agreements or general license agreements or forms of management agreements) should be stipulated in the articles of association, as they relate to basic rights of members of the organization. Accordingly these matters have been restated as being matters that should be provided in articles of association of intermediary organizations.
6.Amendments related to the Appeals Law, Law of Administrative Litigation, and Law of Administrative Procedures;
Pursuant to the newly amended Appeals Law and Law of Administrative Litigation (promulgated October 28, 1998), the re-appeals system has been abolished. Accordingly, the word "re-appeal" has also been deleted from Article 36, Paragraph 2 of the Copyright Intermediary Organization Regulations. In addition, in line with the Law of Administrative Procedures, an invalidation of a legal administrative decision should be a "revocation", while the invalidation of an illegal administrative decision should be a "cancellation".
Where a intermediary organization fails to register as a juridical person within 6 months after receiving approval for establishment (present Article 8), or falls within any of the circumstances set out in Article 40, Paragraph 1, Subparagraphs 2 to 4 of the current Copyright Intermediary Organization Regulations, a revocation should be imposed depending on the nature of the violation. Where any of the circumstances set out in Article 7, Paragraph 1 applies after approved establishment, the competent authorities should order dissolution of the organization pursuant to Article 40, Paragraph 1, Subparagraph 1 of the current Copyright Intermediary Organization Regulations. Depending on the nature of the violation, a cancellation should be imposed. These terms related to administrative decisions have been amended in line with the main administrative laws.
7.Article 13, Paragraph 2 is amended so as to relax prohibitions on parallel licensing by members;
The purpose for establishment of intermediary organizations is to manage copyright matters for their members. If after joining an organization, a member is permitted to further license his/her copyright or authorize a third person to handle such matters, users will not be certain with whom they should negotiate. This will result in disorder in the copyright market.
However, if copyright owners lose the right for parallel licensing after joining an intermediary organization, it will result in intermediary organizations possessing too much market power and will cause price negotiations to become inflexible. Disputes are more likely to occur, which is detrimental to the interests of both copyright owners and users.
In light of these concerns, a proviso is inserted to Article 13, stating that a copyright owner does not lose the right for parallel licensing upon joining a copyright intermediary organization, if the management agreement separately provides for such a right.
8.Amend provisions related to review of copyright catalogues and filing of contents for inspection;
In order to ensure the public is aware of the scope of copyright under management by intermediary organizations, and to facilitate contract and pricing negotiations between users and intermediary organizations, intermediary organizations are expressly required to prepare copyright catalogues or copyright indices, as well as table of usage rates. Such information should also be made available for public viewing in writing or via the Internet, and should be updated regularly.
Provisions related to contents of such information, as well as administrative supervision by the competent copyright authorities have also been inserted, so as to ensure contents provided to the public are consistent with the actual matters under management.
9.Enhance mediation functions between intermediary organizations and users;
Where user and intermediary organization are unable to reach an agreement, either party may apply to the competent copyright authority for mediation, pursuant to Article 82 of the Copyright Intermediary Organization Regulations. However, the said mediation is purely on a voluntary basis, and requires the agreement of both parties. Therefore so far it has not been fully effective in resolving copyright disputes. Accordingly, a provision is inserted to state: "Where a user seeks to enter into an individual or general license agreement with an intermediary organization but such request is rejected by the organization, or the parties are unable to reach an agreement, either party may apply to the competent authorities for mediation, and the other party may not refuse."
Further, in order to ensure the mediation function is fully effective, it is provided that once the parties enter into mediation proceedings, the parties may not exercise their litigation rights.
10.Delete requirement that users must regularly provide intermediary organizations with inventories of usage;
Although the current Copyright Intermediary Organization Regulations provides that users must regularly produce inventories of usage, there are no penalties for failure to do so. As copyright is a private right, the Law should return to market principles. Accordingly, production of inventories should be governed by contract between user and intermediary organization, and should be deleted from the legal provisions.
11.Insert provisions related to violation of information publication regulations by intermediary organizations;
In order to effectively supervise carrying out of business by copyright intermediary organizations, such organizations are required to ensure at all times that copyright catalogues made available to the public are accurate, so as not to cause copyright disputes when the public relies on such information. Where an intermediary organization violates Article 23, Paragraph 1 or 3 of the amendments concerning public management of copyright catalogues, the competent authorities shall prescribe a period of rectification of such violation, and may also impose an administrative fine. If rectification were not made within the prescribed period, consecutive fines may be imposed until rectification is made.
12.Article 41 of the present Copyright Intermediary Organization Regulations is de-criminalized and replaced with administrative penalties;
Violations of Article 9, Paragraph 1 are not considered to warrant criminal sanctions, giving the nature of the illegality and offense. Based on considerations of hierarchy of crimes, these violations are revised to be subject to administrative penalties. In order to differentiate from the consecutive penalties imposed in Article 42 of the amendments, Paragraph 1, Subparagraph 2 of Article 42, and Paragraph 2 of the same Article under the current Copyright Intermediary Organization Regulations have been shifted to the revised Article 41.
Regulations for Deposit of Patented Microorganisms
Paragraph 4, Article 26 of the Patent Law, which was revised on October 24, 2001, provided that the competent patent authority shall stipulate regulations concerning the acceptance criteria, types, forms, quantity, fees and other relevant matters for deposit of microorganisms. Accordingly, the IPO has drafted the Regulations for Deposit of Patent Microorganisms, with reference to the "Guidelines and Enforcement for Deposit of Patent Microorganism" of the Food Industry Research & Development Institute, the Budapest Agreement, and its complementary regulations, and the Regulations for Deposit of Patent Microorganisms were promulgated on June 21, 2002. These Regulations contain 27 articles, which take effect on the promulgation date. The full Regulations and related tables can be found at the IPO's website at: http://www.moeaipo.gov.tw/news/ShowNewsContent.asp?otype=1&postnum=1529&from=board.
Taiwanese Applications for Patents in Mainland China
According to statistics provided by Mr. Wang Yun-fang, consultant of Mainland China's Yunhsing Patent & Trademark Agents Ltd. (永新專利商標代理公司), a total of 15,075 applications were filed in Mainland China by Taiwanese natural and juridical persons in 2001. Amongst these, 3,612 (24%) were invention patents, 9,486 (63%) were utility model patents, and 1,977 (13%) were appearance & design patents. In 2000 a total of 10,766 patent applications were filed, consisting of 1,811 (16.8%) invention patents, 7,388 (68.6%) utility model patents, and 1,567 (14.6%) appearance & design patents. The number of 2001 applications represents a 40% increase on that of the previous year.