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Draft Partial Amendments to Copyright Law
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" and the "WIPO Performances and Phonograms Treaty", 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 MOEA finds that there is a need to revise the Copyright Law currently in force. Taking into account developments in international copyright laws as well as practical experience, the MOEA has drafted "Partial Amendments to the Copyright Law" and has submitted the same to the Executive Yuan for consideration. These amendments consist of revisions to 25 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 "WIPO Copyright Treaty" 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 "WIPO Performances and Phonograms Treaty" 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 (amend Article 3, Paragraphs 1, Subparagraphs 7 to 9 and 11, and Articles 24 and 113-1).
(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 "WIPO Copyright Treaty" and Article 18 of the "WIPO Performances and Phonograms Treaty" 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 "WIPO Copyright Treaty" and Article 19 of the "WIPO Performances and Phonograms Treaty" both require appropriate protection and remedies be enacted in these circumstances. Therefore, these provisions have been inserted to protect the rights of copyright owners (amend Article 3, Paragraph 1, Subparagraphs 17 and 18; Article 87, Paragraph 1, Subparagraph 5 and 6 and Paragraph 2; and Article 93-1).
(3) Amend provisions relating to "reasonable use":
While the Copyright Law is enacted to protect the copyright of authors, it must also take into account public rights and country's overall cultural development. Where necessary, the right of authors must be restricted. Therefore, in line with the use of computers and Internet in today's environment, the Copyright Law is revised with reference to the newly inserted "right of communication to the public" in Article 24. Other related provisions have also been amended, to give greater legal certainty. Further, 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 (amend Articles 49, 50, 53, 56, 60, 65 Paragraph 3, and 82 Paragraph 1 Subparagraph 4).
(4) Insert provisions concerning assignment or registration of 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, it is necessary to insert provisions concerning registration of plate right assignments and trusts, so as to be consistent with provisions of the Trust Law. 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 (amend Article 79, Paragraph 4 and Article 113-2).
(5) Strengthen binding force of copyright or plate right dispute mediations:
Presently the 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 (amend Articles 82-1 to 82-5).
(6) Amend penalty provisions concerning infringement of copyright and/or plate right:
Pursuant to Article 61 of WIPO's TRIPS Agreement, "Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful 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." While TRIPS requires the criminal penalties be applied in respect of commercial-oriented infringements, it does not require the same for non-commercial-oriented infringements, for which civil remedies would appear to be sufficient. Accordingly, the amended provisions decriminalize infringements of moral rights, non-commercial infringements of copyright, plate rights, and infringement by way of failure to erase reproduced back-up copies of computer programs. Criminal penalties will only apply to commercial infringements of copyright, and infringing reproductions of other people's copyright for the benefit of a juridical person. Provisions have also been inserted imposing penalties of detention and increased fines, in order to prevent infringing activities (amend Articles 91 to 93, 95, 96 and 100).
Amended "Regulations for Compulsory Licensing & License Fees for Musical Works"
On February 20, 2002 the MOEA announced the revised "Regulations for Compulsory Licensing & License Fees for Musical Works", by the MOEA order Chin-Chi-09104603141. The full document of these Regulations can be found at the IPO's website at:
Optical Media Management Law in Practice
In order to coordinate the government departments involved in enforcing the Optical Media Management Law, the MOEA had enacted the "Enforcement Guidelines for Optical Media Management Matters & Investigation Procedures", which came into force on January 21, 2002. Matters not stipulated within these Guidelines are to be dealt with in accordance with the Law of Administrative Procedure.
According to these Guidelines, the MOEA will form a joint investigation taskforce comprising of the Anti-Counterfeiting Taskforce, the Intellectual Property Office, the Industrial Development Bureau, the Board of Foreign Trade, and the Bureau of Standards, Metrology and Inspection (BSMI). Where necessary, the joint investigation taskforce can also request the assistance of judicial and police departments. The Anti-Counterfeiting Taskforce will be responsible for calling and coordinating the execution of investigations, as well as managing the filing and other relevant matters. The investigation taskforce will focus on investigating locations where optical media and master disks may be legally or illegally manufactured, as well as other related locations, and investigations may take place regularly or irregularly in stages. However, they will give priority to investigating locations subject to a complaint by the general public or a governmental department.
The division of responsibilities for the relevant departments is as follows:
(1) Industrial Development Bureau: in charge of applications for optical media manufacturing permits, the procedures, contents and documents required for declarations, and other related matters.
(2) Intellectual Property Office: in charge of application procedures for source identification codes, how printed labels should be made, required documents and other related matters.
(3) Board of Foreign Trade: in charge of declaration procedures for importing or exporting manufacturing machinery and equipment, required documents and other related matters.
(4) BSMI: in charge of inspection of source identification code printed labels.
(5) Anti-Counterfeiting Taskforce: in charge of coordinating Optical Media Management Law enforcement matters.
(6) General Directorate of Customs and its subordinate offices of the MOF: border investigations.
Detailed information concerning the aforementioned Guidelines can be found at the IPO's website at:
IPO Calls for Public Comments on Trademark Application Forms
On June 1, 2001 the IPO began to adopt new application forms for trademarks applications (http://www.moeaipo.gov. tw/trademark/trademark_table.asp). In order to make these forms even better suited to practical needs, the IPO calls upon the public to submit their comments about completion of the forms and application procedures in practice. These comments should be submitted before April 1, 2002 by E-mail (email@example.com) or by fax (02-27359095), and the IPO will make necessary revisions based on these public suggestions.