|
智慧局探討「著作權法有關刑罰規定」
我國現行著作權法有關刑責之規定，包括刑度之輕重與告訴乃論之原則是否有調整之必要？均值得探究與檢討。經濟部智慧財產局爰於本（九十）年四月十二日邀集專家學者假該局召開「著作權法有關刑罰規定是否妥適之座談會」，蔡惠言副局長於結論時表示，本議題非一時即可下定論，到底將來如何執行，使之合理化、制度化，該局將參考與會人員之意見。茲將本會議相關之緣起說明摘述如下：
按關於著作權之保護，國際公約僅要求各國應採取有效之刑罰落實權利人權益之保障，至於其手段與內容，則任由各國國內法定之，亦即如何以刑罰遏止著作權侵害，或以何種刑度，乃至是否採告訴乃論或非告訴乃論之規定，胥任由各國立法政策定之。
而我國現行著作權法關於侵害著作權行為之處罰，一般侵害案件為告訴乃訴，最高處六月以上五年以下有期徒刑，得併科新臺幣三十萬元以下罰金，至於常業犯，則為非告訴乃訴之罪，處一年以上七年以下有期徒刑，得併科新臺幣四十五萬元以下罰金。
至於權利人之立場無不希望提高刑責，甚至完全採非告訴乃論之規定，惟著作權畢竟屬私權性質，其保護須權利人主動主張權利，而刑罰之均衡性亦須加考量，以免與其他犯罪之處罰規定失衡。
惟近年司法院及法務部一再提出智慧財產權除罪化之建議，另現行著作權法關於侵害著作權之刑度是否適當，各界迭有爭議。關於告訴乃論之規定，法務部一再強調告訴乃追訴之要件而非偵查之要件，侵害著作權之案件，無論是否為常業犯，檢察官均得主動進行偵查，被害人仍得提出告訴。
緣著作權本質為私權，綜觀各國著作權法關於著作權之侵害，雖亦有刑罰，惟多以告訴乃論為原則。又著作權侵害案件於外國多以民事訴訟作為定紛止爭之方式，惟於我國實務上，著作權人傾向以刑事訴訟作為獲取民事賠償之手段，此為國情不同之現況。
IPO Review of Sanctions under Copyright Law
Should there be revisions to criminal sanctions laid down by the Copyright Law, including the seriousness of violations, and the principle of prosecution only being instituted by a complainant? On April 12, 2001 the Intellectual Property Office
(IPO) of the MOEA held a conference on the "Appropriateness of Sanctions under the Copyright Law", and invited the views of academics and experts. At the close of the confere
nce, the deputy head of the IPO, Mr Tsai HuiYen concluded that there is no ready answer to this question, and that the IPO will continue to consider the opinions expressed by participants of the conference, in deciding how to ensure the Copyright Law will be reasonable and systematic. Below is an outline of background to the conference:
(a) In the protection of copyright, international conventions and treaties merely require that member nations adopt effective sanctions that will ensure protection of copyright interests. It is up to the domestic laws of member nations to determine the nature and extent of these sanctions. In other words, it is left to the legislative policy of each nation to decide how sanctions will stop copyright infringement, how serious these sanctions should be, and whether prosecution should be instituted only by a complainant.
(b) Under the present Taiwanese Copyright Law, prosecution of a general case of infringement can only be instituted by a complainant, and is punishable by imprisonment for more than 6 months but less than 5 years, and/or a fine not exceeding NT$300,000. However, it is not necessary for prosecution of repeat offenders to be instituted by a complainant, and these offences are punishable by imprisonment for more than 1 year but less than 7 years, and/or a fine not exceeding NT$450,000.
(c) From the point of view of a copyright owner, it is naturally desirable for sentences to be made harsher, and even to make it completely unnecessary for prosecutions to be
complainantinstituted. Nonetheless, copyright is after all in the nature of a private right, and its protection requires the rightful owner to make a claim of his/her own accord. It is also important to balance the seriousness of the offence against the punishment, so as to be consistent with sanctions applicable to other offences.
(d) In recent years, the Judicial Yuan and the Ministry of Justice have repeatedly proposed for intellectual property right infringement to be decriminalized. There is also much controversy concerning whether the degree of harshness of criminal sanctions under the present Copyright Law is appropriate. Regarding the requirement for complainantinstituted prosecution, the Ministry of Justice consistently emphasized that a complaint is an essential element in prosecution, but not in investigation. Irrespective of whether copyright infringement is committed by a repeat offender, the prosecutor may initiate an investigation of his/her own accord, and the infringed party must still file an official complaint.
(e) Copyright is essentially a private right, and a review of copyright laws of other countries shows that although infringement of copyright is punishable by criminal sanctions, in principle prosecution is instituted generally only by complaint. In addition, copyright infringement disputes overseas are generally resolved by civil actions. In contrast, copyright owners in Taiwan tend more to rely on criminal prosecutions, as a means of being awarded civil damages.
網際網路上音樂著作之傳輸是否屬「公開播送」？
有關網際網路上音樂著作之傳輸是否適用現行著作權法「公開播送」之規定？經濟部智慧財產局於九十年五月二十三日以(九○)智著字第09000046100號函表示，現行著作權法第三條第一項第七款規定及同款之「其他器材」用語，係於八十一年著作權法所增定，惟當時網際網路並不盛行，故其立法原意並不包括網際網路之情形，是網際網路之傳輸，為近年網際網路興盛後產生之新利用型態，尚不屬上述法條所定「公開播送」之範圍。
按該局已將前述網際網路之傳輸相關問題，納入著作權法部分條文修正草案「公開傳播權」之修正議題（九十年五月四日已完成著作權法部分條文修正草案第二稿，上載於該局網站(http://www.moeaipo.gov.tw/最新消息)。
Transmission of Musical Works via the Internet "Public Broadcast"?
Does the "public broadcast" provisions of the current Copyright Law apply to transmission of musical works via the Internet? According to the explanatory letter issued by the Intellectual Property Office (IPO) of the MOEA on May 23, 2001 (ref. 2001ChiChu09000046100), the provision of SubPar. 7, Par. 1, Article 3 of the Copyright Law, and the "other equipment" referred to in that article, were part of the 1992 enactment. At the time the Internet was not so prevalent, and the original legislative intention did not include use of the Internet. Therefore, transmission via the Internet is a novel use that only took place when the Internet became popular, and does not fall within the scope of "public broadcast" under the aforementioned article. The IPO has tabled questions concerning transmissions via the Internet as part of its project to produce draft amendments to "public transmission rights" under the Copyright Law. (A second draft of these amendments was finalized on May 4, 2001, and can be found on the IPO website at
http://www.moeaipo.gov.tw)
智慧財產局成立專利協調會報
智慧財產局為因應業務需要，於本(九十)年六月十一日成立「專利協調會報」，負責協調督導專利一、二、三組業務，並於七月二日假該局十八樓禮堂舉行佈達典禮，以及十七樓辦公室之揭牌儀式。該局盧副局長擔任召集人兼執行秘書，並由資深專利審查委員蘇嘉昇及童沈源為副執行秘書，負責專利各組審查案件之覆核、管考追蹤與人員訓練等工作。
IPO Establishes "Patent Coordination Team"
In response to the demands of its work, the Intellectual Property Office (IPO) established on June 11, 2001 the "Patent Coordination Team", which will be responsible for coordinating and guiding the work of Patent Units 1, 2 and 3. The opening ceremony was held on July 2 in the ceremonial hall of the IPO on Level 18 of the building, while a ceremony to unveil the team plaque was held in the office on Level 17. The deputy head of IPO, Mr. Lu, will be acting as the convener and executive secretary of the Team, while senior patent examiners Su ChiaShen and Tong ShenYuan will act as deputy executive secretaries. The Team will be responsible for review of cases examined by each patent unit, as well as for management examination followups and personnel training.
APEC/IPEG第十三屆會議在台中舉行
由我國所主辦的亞太經濟合作(APEC)智慧財產權專家小組(IPEG)第十三次會議，將自本（九十）年七月十六日起假台中晶華酒店舉行兩天，計有來自亞太地區包含我國在內共十五個經濟體四十餘位官員代表參加。我國曾於四年前在台北舉辦APEC智慧財產權專家小組第五次會議，本次APEC/IPEG XIII會議主辦單位為經濟部智慧財產局。
十六日、十七日兩天會議係由IPEG日籍主席Kobayashi先生主持，會議議程除聽取APEC秘書處及IPEG業務報告外，討論重點為新共同行動計畫，該計畫內容以加強政策對話機制、智慧財產權電子化、智慧財產權之保護、宣導與合作及推動智慧財產權之管理與技術移轉等為主。會中日本、美國、新加坡、泰國、澳洲、墨西哥、香港等經濟體就相關議題分別提出專題報告；其中，我國亦就「著名商標」、「生物科技保護」、「電子商務與WIPO網路條約之執行」、「傳統知識與民俗創作」及「建立有效之智慧財產權保護制度」等議題提出簡報。
IPEG係APEC組織架構下一負責智慧財產權領域的專家小組，除平常之業務聯繫外，並藉每年召開兩次會議的機制，予以檢視全球智慧財產權之發展趨勢與最新議題，及探討APEC各經濟體的政策與具體措施，以期區內保護智慧財產權的觀念與作法能凝聚共識，並逐漸達成一致化與透明化的目標。我國智慧財產局主動爭取此次會議主辦權，亦可反應我國積極參與國際社會之決心與努力。
此外，為達到增進與APEC二十一個經濟體有關智慧財產權政策與執行保護方面經驗與資訊之交流，該局並於七月十九日假上述地點舉行「APEC新經濟時代智慧財產權保護研討會
(APEC Symposium on Intellectual Property Rights in the New Economy)」。本次會議邀請國內外專家學者擔任主持人、講座及與談人，一齊探討新經濟數位議題、專利侵權之評鑑、專利商品化與技術移轉等相關議題，期望藉由APEC各經濟體產、官、學、研各界代表之參加，達成共同研討與資訊交流之目的。
13th
APEC/IPEG Meeting held in Taichung
The 13th Meeting of APEC and IPEG, which was hosted by Taiwan, took place at the Grand Formosa Taichung over 2 days, starting on July 16, 2000. It was attended by more than 40 government officials from 15 members in the Asia Pacific region, including Taiwan, the host country. Taiwan had hosted the 5th Meeting of IPEG in Taipei 4 years ago, and the office responsible for hosting the present Meeting was the Intellectual Property Office (IPO) of the MOEA.
The Meeting on both days was chaired by the Japanese chairman of IPEG, Mr Kobayashi. Besides reports by the APEC Secretariat and IPEG, and an important matter tabled for discussion at the Meeting was a new joint action plan. The said plan primarily focused on strengthening mechanisms for policy dialogues, the digitalization of intellectual property rights, protection of intellectual property rights, and the promotion, cooperation and mobilization of IPR management and technology transfers. Japan, the United States, Singapore, Thailand, Australia, Mexico and Hong Kong all produced case study reports on various relevant topics. Taiwan also produced summary reports on such topics as "famous trademarks", "protection of biological technology", "enforcement of ECommerce and WIPO Internet Treaty", "traditional knowledge and cultural works", and "creating an effective IPO protection system".
The IPEG is an expert unit within the APEC structure that is responsible for the area of intellectual property rights. Besides daytoday liaison, IPEG gains an overview of global IPR development trends as well as the most recent issues through the meetings held twice annually. It also reviews the policies and measures adopted by each member, with a view to reaching a consensus in IPR protection attitudes and practices within the region, and gradually to achieve the goals of uniformity and transparency. Taiwan's IPO had actively sought the right to host this Meeting, which also reflected Taiwan's determination and efforts to participate in the international arena.
In addition, so as to aid the exchange of experiences and information between the 21 member bodies in APEC, on July 19 the IPO also held an "APEC Symposium on Intellectual Property Rights in the New Economy". The Symposium invited experts and academics from Taiwan as well as overseas to be chairperson or participants, and together they discussed such topics as digitalization in the new economy, assessment of patent infringement, industrial application of patents, and technology transfers. It is hoped that reciprocal discussions and information exchange will be achieved by the participation of industry, government, academic and research representatives from members of
APEC.
我國八十九年專利與商標申請暨核准等案件情形
茲據經濟部智慧財產局統計資料披露，89年度專利新申請案共61,231件，較上年增加9,310件（上升17.93%），其中國人申請案有36,369件(約占60﹪弱)，外國人申請案則有24,862件(約占40﹪強)；公告核准案計42,241件，較上年增加13,097件（成長44.94%），其中國人核准案有25,812件(約占61﹪強)，外國人核准案則有16,429件(約占39﹪弱)；核駁案共計22,029件；核發專利證書合計30,465件。
再審查申請案共計7,103件，較上年減少13.66%，而經審定之再審查案共8,428件，其中核准專利案6,389件，駁回專利案2,039件；異議申請案共計2,266件，較上年成長9.26%，而經審定之異議案共1,544件，其中異議成立案569件，異議不成立案975件；舉發申請案共計583件，較上年減少10.72%，而經審定之舉發案共536件，包括舉發成立案200件，舉發不成立案336件。
而同年度商標新申請案共88,002件，較上年增加14,790件（上升20.20%），其中國人申請案有64,683件(約占73.50﹪強)，外國人申請案則有23,319件(約占26.50﹪弱)；公告核准案計68,168件，較上年增加11,404件（成長20.09%），其中國人核准案有52,370件(約占76.82﹪強)，外國人核准案則有15,798件(約占23.18﹪弱)；核駁案共計6,400件；核發商標證書合計52,954件。
商標經審定之異議案共1,486件，較上年上升37.08%，其中異議成立案計723件占48.56%，異議不成立案763件占51.35%；經審定之評定案為431件，較上年減少13.28%，其中評定成立案239件占55.45%，評定不成立案192件占44.55%。
Patent & Trademark Application and Grant Cases in 2000
According to statistics released by the Intellectual Property office (IPO), the IPO handled 61,231 new patent applications in 2000, an increase of 9,310 (17.93%) from the previous year. Amongst these, 36,369 applications were filed by Taiwanese nationals (weak at approximately 60%), while 24,862 were filed by foreign nationals (strong at approximately 40%). The number of approved and gazetted applications was 42,241, an increase of 13,097 cases (44.94%) from the previous year. Amongst these, 25,812 approved cases were filed by Taiwanese nationals (strong at approximately 61%), while 16,429 cases were filed by foreign nationals (weak at approximately 39%). Approximately 22,029 applications were rejected, and a total of 30,465 patent certificates were issued.
The IPO also received a total of 7,103 applications for reexamination, a decrease of 13.66% compared to the previous year. A total of 8,428 applications for reexamination were handled, amongst which 6,389 were approved for receipt of patents, while 2,039 were rejected. A total of 2,266 applications for oppositeion were received, an increase of 9.26% compared to the previous year. A total of 1,544 applications for opposition were examined, amongst which 569 oppositions were approved, while 975 were rejected. A total of 583 objections were received, an increase of 10.72% from the previous year. The IPO handled 536 objections, including 200 cases that were approved, and 336 that were rejected.
The Office also handled a total of 88,002 new trademark applications during the year 2000, an increase of 14,790 (20.20%) from the previous year. Amongst these, 64,683 applications were filed by Taiwanese nationals (strong at approximately 73.50%), while 23,319 were filed by foreign nationals (weak at approximately 26.50%). The number of approved and gazetted applications was 68,168, an increase of 11,404 cases (20.09%) from the previous year. Amongst these, 52,370 approved cases were filed by Taiwanese nationals (strong at approximately 76.82%), while 15,798 cases were filed by foreign nationals (weak at approximately 23,18%). Approximately 6,400 applications were rejected, and a total of 52,954 trademark certificates were issued.
A total of 1,486 applications for opposition of trademark were examined, an increase of 37.08% from the previous year. Amongst these, 723 oppositions were approved (48.56%), while 763 were rejected (51.35%). The IPO also handled 431 assessment cases, a decrease of 13.28% from the previous year. Amongst these, 239 cases were approved (55.45%), while 192 were rejected (44.55%).
IFPI九十年第一季執行反盜錄工作成效
依據財團法人國際唱片業交流基金會(IFPI, Members' Foundation in Taiwan)就有聲出版品取締的統計資料披露，九十年一至三月該會協同警察機關等相關單位查察取締侵權之有聲出版品案件計487件，包括夜市攤販459件、中盤3件、門市2件、倉庫3件、MP3販賣11件、CDR販賣4件及住家5件，共查扣盜版卡帶11,928卷、CD 395,746片、MP3 1,013片、CDR 8,223片、VCD 72片及機械設備與半成品乙批，市場評估損失約432,518,385元。此外，該季查獲涉嫌侵害著作權而移送偵辦之嫌疑犯計563人。
Work by IFPI in 1st Quarter 2001
According to statistics recently released by the International Federation of the Phonographic Industry, Members' Foundation in Taiwan (IFPI), the IFPI had assisted police and other related agencies with a total of 487 raids for infringing audio products during the period from January to March 2001. These consisted of 459 raids on night market vendors, 3 wholesalers, 2 retailers, 3 warehouses, 11 MP3 vendors, 4 CDR vendors, and 5 residential premises, resulting in seizures of 11,928 pirated cassettes, 395,746 pirated CDs, 1,013 MP3 disks, 8,223 CDRs, 72 VCDs, and a set of machinery, equipment and semifinished goods. This constitutes an estimated loss of NT$432,518,385 at market value. In addition, a total of 563 defendants were referred to the prosecutors' office for suspected infringement of copyright.
|
