本 期 提 要HEADLINES
Draft Copyright Law Amendments Released
The Intellectual Property Office recently released draft amendments to the Copyright Law. The amendments are intended to promote the distribution of information, the development of electronic commerce, increase protection for authors in the digital internet age, and conform to international trends in copyright law.
The IPO will hold six public hearings in September and October regarding the proposed amendments.
The draft amendments revise 16 articles in the current Copyright Law while adding four articles. The principal proposed amendments are as follows: (underlined portions are revised portions)
a. Add a right of public transmission and revise the definitions of public broadcast and public performance (Add articles 3-1-6bis, 3-1-7bis, 3-1-7ter, 23bis, and revise articles 3-1-7, and 24)
i. Amendments to Article 3-1
(i) Subparagraph 6bis. "Public transmission" means to communicate to the public the contents of a work by wire or wireless, where such communication is for the purpose of public reception of information. It includes public broadcast, interactive transmission, making available to the public, or other transmission.
(ii) Subparagraph 7: adds "loudspeaker" for communication to the public of an original broadcast of sounds or images.
(iii) Subparagraph 7bis. "Interactive transmission" means to communicate the contents of a work to public recipients of information at a time or place individually chosen by them in response to a request by them. It includes causing the work to assume a transmittable form prior to interactive transmission; provided, this limitation shall not apply to public broadcast.
(iv) Subparagraph 7ter. "Making available to the public" means to cause a work to assume a transmittable form prior to interactive transmission.
ii. Article 23bis: Except where otherwise provided by this Law, authors have the exclusive right to publicly transmit their works.
iii. Article 24: Authors have the exclusive right to publicly broadcast and make available to the public their sound recordings and performances; provided, this shall not apply to the following:
1. public broadcasts of a performance after such performance has been reproduced or publicly broadcast;
2. public broadcasts of recorded works by means of loudspeaker or other equipment.
b. Addition of provisions regarding technological prevention measures and electronic copyright rights management information (Added articles 3-1-15, 3-1-16, 87-1-6, 87-2, 92bis, 93bis)
i. Amendments to article 3-1
(i) Subparagraph 15. "Technological protection measures" means effective technological means employed by copyright owners to prevent infringement of their rights; provided, these shall not include measures to restrict legally permitted exploitation of such works by other persons.
(ii) Subparagraph16. "Electronic copyright rights management information" means electronic information attached to the original or copies of a work, or accompanying the communication of a work to the public, to identify the work, the copyright owner, or the period or terms and conditions of exploitation of the work.
ii. Add a subparagraph 6 to Article 87-1. Article 87-1 provides "In any of the following circumstances, except as otherwise provided under this Law, infringement of copyright or plate rights will be deemed to have occurred:
(i) Article 87-1-6 provides: To unauthorizedly remove or alter electronic copyright rights management information knowing that such action would injure the rights of the copyright owner; likewise, to distribute, import for distribution, or publicly transmit an original or copy of a work despite knowing that electronic copyright rights management information has been unlawfully removed or altered and that the rights of the copyright owner would be injured.
(ii) Add an Article 87-2: The provisions of subparagraph 6 of the preceding paragraph shall not apply to removal or alteration of electronic copyright rights management information during lawful use by consequence of technological limitations at the time of the act.
iii. Add an Article 92bis as follows: A person who produces, imports, or distributes equipment specifically for purposes of circumventing technological protection measures, or provides services or information specifically for purposes of circumventing technological protection measures, with the intent that the equipment, services, or information will be used to infringe copyrights of other persons, shall be imprisoned not more than one year, and in addition thereto, may be fined up to one hundred thousand New Taiwan Dollars.
iv. Add an Article 93bis as follows: A person who infringes another person's copyright by the means specified in Article 87, Paragraph 1, Subparagraph 6 with intent to profit shall be imprisoned not more than one year, and in addition thereto, may be fined up to fifty thousand New Taiwan Dollars.
c. Add results of licensing of copyrights and the legal position of exclusive licensees (revised Articles 37 and 81-1)
i. Revised article 37-1 from "portions on which the parties' agreement is unclear" to "portions on which the parties' agreement is unclear, or which regard as yet unknown types of exploitation". (Version B).
ii. Add Article 37-3: Licensing referred to in Paragraph 1 shall not be affected by subsequent transfer or further licensing by the economic rights owner of its economic rights.
iii. Add Article 37-4: An exclusive licensee may, within the scope of its license, exercise rights in the capacity of the economic rights owner. The economic rights owner may not exercise rights within the scope of an exclusive license unless otherwise agreed.
iv. Revised Article 81-1 from "Economic rights holders" to "Economic rights holders or exclusive licensees".
d. Revise fair use provisions
i. Article 47-3: "Public broadcast" revised to "publicly transmit".
ii. Article 49: add "computer network" as a method of reporting current events.
iii. Article 50: "Works publicly released in the name of an author that is a central or local government agency or a public juristic person may, within a reasonable scope, be reproduced or publicly transmitted."
iv. Article 56: "For purposes of broadcasting" revised to "For purposes of transmission".
v. Article 56bis: "broadcast" revised to "publicly transmitted".
vi. Article 61: "publicly broadcast" revised to "publicly transmit", and "newspaper or magazine" revised to "newspaper, magazine, or public transmission."
e. Revised Article 79-3 to provide that the transfer or placing in trust of plate rights is not effective against third parties unless registered.
f. Delete the requirement of Article 82-1-1 that the Copyright Examination and Mediation Committee must examine compensation rates used by copyright intermediary organizations.
g. Provide "safe harbor" provisions for Internet Service Providers to escape liability for third party infringement.
Add an Article 87ter as follows:
In any of the following situations, a person providing electronic transmission network service or facilities shall not be liable for copyright infringement with respect to acts of copyright infringement by other persons using their service or facilities:
1. where a work made available to the public had been uploaded by another person and the content was unknown, and where it would objectively have been unfeasible or technologically impossible to prevent access to the work;
2. where only access is provided to users to the content of works which are provided by other persons, including automatic and temporary storage of such works at the request of users.
時 事 報 導
經濟部智慧財產局於日前譯印並發行「巴黎公約解讀」、「美國專利須知」八十九年修訂版、「美國商標須知」八十九年初版，及有關介紹我國商標申請程序中文版本「認識商標」之英譯版本「Q & A About Trademark」等書。上述出版品，有需要之讀者，可去函智慧局資料服務組二科免費索取，地址：台北市106辛亥路二段185號5樓或傳真：(02)27352656。
IPO Publishes Free Books on IPR
The Intellectual Property Office (IPO) recently published four booklets about different aspects of intellectual property law for free distribution to the general public. The four booklets are: "Understanding the Paris Convention", "Essentials of U.S. Patent Law", "Essentials of U.S. Trademark Law", and "Q & A About Trademark". All of the booklets are in Chinese, except for "Q & A About Trademark" which is in English. This booklet is based on the Chinese book "Recognizing Trademark" and aims to introduce Taiwan's trademark application procedure to foreign nationals. Persons interested in obtaining copies of the four publications may contact the IPO by mail at 5th Floor, No. 185, Hsinhai Road, Section 2, Taipei, or by fax at 886-2-2735-2656.