卷七期 900416

本 期 提 要HEADLINES

智財權諮商會議我向美方說明我保護智財權之措施與決心

Taiwan Presents Positions During IPR Consu ltation with the U.S.

智慧局修法延長專利權期間

IPO Drafts Amendments to Extend Patent Terms of Protection

電腦程式著作財產權保護期間將修正為著作人之生存期間及其死亡後五十年

Draft Submitted to Extend Copyright Term of Protection for Computer Programs 

台灣各地方法院檢察署八十九年辦理侵害智慧財產權案件情形

Statistics on IPR Investigations by District Court Prosecutors in 2000

智財權諮商會議我向美方說明我保護智財權之措施與決心

中美智慧財產權諮商會議於三月二十日及二十六日在經濟部國際貿易局舉行,雙方就我國正進行的光碟管理條例草案、專利法及著作權法部分條文修正等內容,以及我國政府打擊侵犯智慧財產權的行動措施與成效,進行意見交換。茲將我方回應摘述如下:

(一)有關「光碟管理條例」立法:
有關立法時程,草案內容已於三月二十三日陳報行政院,將續進行後續立法協商工作。另有關罰責,中美法制不同,如果採行刑事罰,程序較為繁複,為使主管機關能快速有效處置違反本條例規定者,本條例採取行政罰;且在公聽會過程中,並未有權利人團體提出異議,倘有具體關切建議,我方將會繼續溝通。此外,本條例已對違法生產之機具與光碟產品訂立沒收規定。

(二)有關專利法保護期問題:
在我國加入WTO之後,將遵照WTO/TRIPS相關規定,對依八十三年一月二十一日修正施行前之專利法所審定之發明專利案,將給予其專利權期限自申請日起算二十年屆滿之保護;另新式樣專利權期間,也將依八十六年五月七日修正迄未施行之專利法,由現行之「自申請日起算十年屆滿」改為「自申請日起算十二年屆滿」。目前經濟部智慧局已研擬專利法第一三四條修正草案,並已召開過公聽會議,經濟部將儘速陳報行政院進行後續修法工作。

(三)有關著作權法修正事宜:
我國研擬中之著作權法修正草案,將會針對美方所提業者之書面意見合併其他各界意見考量,草案最後內容將符合TPIPS標準與國際規範。另著作權法中有關電腦程式著作保護問題,經濟部智慧財產局已研擬修訂現行著作權法第三十四條第一項草案,將電腦程式著作財產權保護期間修正為著作人之生存期間及其死亡後五十年,並將儘速陳報行政院進行修法工作。

(四)有關我國政府打擊侵犯智慧財產權的行動措施與成效:
我方回應已於三月二十日向美方充分說明我各政府機關過去執行打擊盜版之努力與成效,如美方仍有疑慮,歡迎提出。

Taiwan Presents Positions During IPR Consu ltation with the U.S.

Intellectual property consultations were held betwe en Taiwan and the United States on 20 March 2001 and 26 March 2001 in Taipei focusing on Taiwan's draft Optical Media Management Law and proposed amendments to Taiwan's Patent Law and Copyright Law. Both sides also discussed the enforcement measures Taiwan has taken to protect intellectual property rights. A sum mary of Taiwan's position during the bilateral consu
ltations is as follows:
a. Optical Media Management Law The draft law was forwarded to the Executive Yuan on 23 March 2001. After approval, the draft law will be submitted to the Legislative Yuan for co nsideration. Regarding the incorporation of cri minal penalties into the law, Taiwan pointed out that the legal systems of Taiwan and the United States are not the same. If Taiwan adopted crimi
nal penalties, the procedure for punishing viol ators would become relatively complicated. Thus, the draft law adopts administrative penalties in order that violators can be punished quickly and efficiently. 
Taiwan's representatives noted that there was no opposition to the adoption of administration penalties voiced by groups representing rights owners during the course of public hearing on the proposed law. Taiwan welcomed any concrete suggestions in this regard and promised to keep open the channels of communication. Taiwan noted that the draft law includes provisions regarding the confiscation of production equipment and optical media products.
b. Term of Patent Protection
After Taiwan accedes to the World Trade Organization, Taiwan will observe the requirements of TRIPS. Thus, invention patents granted prior to the enforcement of the 21 January 1994 amended Patent Law will be accorded terms of protection of 20 years from the date of filing. New design patents will be accorded protection under the amended, but not enforced, 7 May 1997 Patent Law. Thus, the term of protection for new design patents will be extended from ten to 12 years. These revisions are contained in an amendment to Article 134 of the Patent Law drafted by the Intellectual Pr
operty Office. The IPO has already held public hearings on the proposed amendment. The Ministry of Economic Affairs plans to submit the amendment at the earliest possible date to the amendment to the Executive Yuan for later consideration by the Legislative Yuan.
c. Copyright Law Amendment 
Taiwan is considering amending the Copyright Law, taking into consideration written comments from U.S. industry as well as opinions from others. The contents of the final draft will conform with TRIPS standards and international norms. In addition, the IPO has drafted an amendment to paragraph 1 of Article 34 of the Copyright Law to extend the term of protection of computer programs to the life of the author plus 50 years. This amendment has already been presented to the Executive Yuan.

d. Enforcement Issues
On 20 March 2001, Taiwan's representations provided details to the U.S. on the measures implemented as well as the results obtained regarding Taiwan's ant piracy efforts. The Taiwan representatives welcomed the U.S. side to provide comments if they had any doubts about these efforts. 

2.智慧局修法延長專利權期間

為符合WTO/TRIPS第三十三條「專利權期間自申請日起,至少二十年」,及第七十條第二項「會員對於適用本協定之日已存在且已受會員保護或日後符合保護要件之標的,亦適用之」等相關專利權期間規定,經濟部智慧財產局已於日前擬定專利法第一百三十四條修正草案條文,並於九十年三月二十二日召開公聽會,俾博徵建言,供修正之參考。
是項草案將專利法第一百三十四條第二項修正為『本法中華民國八十三年一月二十一日修正施行前,已審定公告之專利案,其專利權期間之計算,依修正前之規定辦理。但發明專利案,於世界貿易組織協定在中華民國管轄區域內生效之日,專利權仍存續者,其專利權期限,依修正後之規定辦理。』,及增訂第三項『新式樣專利案,於世界貿易組織協定在中華民國管轄區域內生效之日,專利權仍存續者,其專利權期限,依中華民國八十六年五月七日修正後之規定辦理。』規定
按該草案,對於我國加入WTO時,依八十三年一月二十一日修正施行前之專利法所審定之發明專利案,專利權仍存續者,應給予其專利權期限自申請日起算二十年屆滿之保護。
另因於八十六年五月七日修正迄未施行之專利法,將新式樣專利權期間,由現行之「自申請日起算十年屆滿」修正為「自申請日起算十二年屆滿」,依WTO/TRIPS第七十條第二項之規定,於我國加入WTO之日,仍存續之新式樣專利權,亦應依八十六年五月七日修正之專利法給予保護。

IPO Drafts Amendments to Extend Patent Terms of Protection

The Intellectual Property Office recently completed proposed revisions to Article 134 of the Patent Law that will extend the terms of protection for inventi on patents and new design patents. The IPO has also held public hearings in order solicit input on the proposed changes.
The amendments are intended to bring Taiwan's patent terms of protection in conformance with requirements under TRIPS. Article 33 of TRIPS provides that "The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date." Paragraph 2 of Article 70 of TRIPS provides "... this Agreement gives rise to obligations in respect of all subject matter existing at the date of application of this Agreement for the Member in question, and which is protected in that Member on the said date, or which meets or comes subsequently to meet the criteria for protection under the terms of this Agreement." 
The proposed amendment would revise the second paragraph of Article 134 as follows:
"For those patent cases which have been examined and published before the revision and enforcement of this Law on 21 January 1994, the computation of the term of the patent rights therefore shall be effected in accordance with the provisions in force prior to the revision of this Law; provided that the term of protection for invention patents still in effect on the date World Trade Organization agreements become effective in the territory under the jurisdiction of the Republic of China shall be effected in accordance with the provisions after the revision of this Law."
The proposed amendment also adds a new paragraph 3 to Article 134 as follows:
"The term of protection of new design patents still in effect on the date World Trade Organization agreements become effective in the territory under the jurisdiction of the Republic of China shall be effected in accordance with the provisions after the revision of 7 May 1997."
According to the draft amendment, invention patents would be provided with terms of protection of 20 years from the date of application if they け(were granted prior to the enforcement of the amendment of the Patent Law on 21 January 1994; and げ) were still in effect when Taiwan accedes to the WTO.
In addition, new design patents still in effect on the date that Taiwan accedes to the WTO will be afforded terms of protection according to the Patent Law as amended on 7 May 1997. Thus, the term of protection will be extended from ten years to 12 years in order to conform to paragraph 2 of Article 70 of TRIPS. 

電腦程式著作財產權保護期間將修正為著作人之生存期間及其死亡後五十年

為使我國著作權法關於電腦程式之著作財產權保護期間之規定,於自然人為著作人之情形,得存續至著作人終身及其死後五十年,以符合WTO TRIPS第十條第一項規定,經濟部智慧財產局特修正現行著作權法第三十四條第一項有關電腦程式著作之著作財產權期間僅存續至著作公開發表後五十年之規定,使電腦程式著作之著作財產權期間回歸適用第三十條至第三十三條有關著作人之生存期間及其死亡後五十年之保護期間等一般規定。該項修正草案已於三月二十三日呈報經濟部轉請行政院審查。

Draft Submitted to Extend Copyright Term of Protection for Computer Programs 

The Ministry of Economic Affairs on 23 March 2001 sub
mitted a proposal to the Executive Yuan to amend the Copyright Law in order to extend the term of protecti
on for computer programs.
Under the draft amendment, paragraph 1 of Article 34 would be revised to provide a term of protection of works by natural authors to the life of the author plus fifty years. The current term of protection for works by natural authors is fifty years after the public release of the work. 
The amendment would place Taiwan's protection of com
puter programs in line with the requirements of para
graph 1 of Article 10 of TRIPS.

4.台灣各地方法院檢察署八十九年辦理侵害智慧財產權案件情形

依據法務部高檢署統計資料,將八十九年侵害智產權案件偵辦、裁判確定及執行情形等彙整及表述如下:

(1)八十九年度偵辦侵害智慧財產權案件情形:
A偵查新收7,059件,比八十八年度增加2,012件;以罪名分析,此類案件大多為違反著作權法,計4,887件佔69.23%,違反商標法1,673件,佔23.70%,違反專利法499件,佔7.07%。
B偵查終結6,571件,(被告8,252人),比八十八年度增加1,815件(被告增加1,791人),其中起訴被告3,648人,佔偵查絡結被告人數44.21%;起訴案件有具體求刑者152件,佔起訴件數4.68%。(詳細資料如附表一)
(2)八十九年度偵辦侵害智慧財產權案件裁判確定及執行情形:
A裁判確定被告人數2,592人,比八十八年度增加655人,其中判決一年以上者254人,一年未滿逾六月者89人,六月以下917人,拘役126人,罰金61人,科刑率為55.83%,比八十八年度之39.34%,增加16.49%。(詳細資料如附表二)
B已執行判決有罪案件747件,被告798人(比八十八年度增加277人,被告增加299人),其中判決6個月以下有期徒刑及拘役得易科罰金者669件(被告717人),執行結果:准易科罰金繳清者678人,佔得易科罰金人數94.56%,不准易科罰金者2人,佔得易科罰金人數0.28%。(註:全部已執行有罪案件准易科罰金者佔得易科罰金總人數80.78%,不准易科罰金者僅佔0.09%)。(詳細資料如附表三)

Statistics on IPR Investigations by District Court Prosecutors in 2000

According to information provided by the Ministry of Justice, statistics on IPRrelated investigations by Taiwan District Cou
rt prosecutors, indictments, affirmed sentences, and converted sentences in 2000 are as follows.
a. Actions by Taiwan District Court Prosecutors in IPR Cases.
(a) District Court prosecutors received 7,059 new IPRrelated cases in 2000, an increase of 2,012 cases compared to the same period of the prior year. Of the new cases, 4,887(69.23%) invo
lved copyrights, 1,673(23.70%) trademarks, and 499(7.07%) patents.
(b) Prosecutors concluded investigations on a total of 6,571 cases, involving 8,252 suspects, an increase of
1,815 cases and 1,791 suspects from a year earlier. Of the 8,252 suspects, indictments were handed down for 3,648(44.21%) persons. Convictions were obtained against 152(4.68%) of these indictment cases. (Please refer to table 1)
b. Affirmed Decisions and Sentence Conversions in IPR related Cases.
(a) There were 2,592 defendants in IPR related cases that were affirmed in 2000. No further appeals are allowed in these cases. The number was an increase of 655 defendants from a year earlier. Of these 2,592 defendants, 254 persons were convicted and sentenced to at least one year. 89 were sentenced to more than six months but less than one year, with 917 defend
ants sentenced to six months or under. A total of 126 persons were sentenced to detention while 61 were fined. Of the total number of those convicted in 2000, 55.83% received jail terms, detention, or fines, or an increase of 16.49 percentage points over the figure of 39.34% of a year earlier. (Please refer to table 2)
(b) Decisions for a total of 747 cases involving 798 defendants were enforced in 2000. These figures are increases of 277 cases and 299 defendants from a year earlier. Of the cases in 2000, 669 cases were enforced for 717 defendants sentenced to six months or under, or detention. In these cases, defendants could apply to convert their sentences to fines. Of these cases, 678 persons (94.56%) were allowed to convert their sentences to fines, while an application for 2 person (0.28%) was denied. (Note: For all criminal cases in the same period, 80.78% of defendants were eligible to convert sentences and only 0.09% of applications to convert sentences were denied. (Please refer to table 3)

附表 Table(.doc)