4 April, 2016
Background
To stay afloat in the digital era, coping with changes to specific national copyright statutes is not just a worldwide trend, but a necessity. Although the statutory framework defining the Taiwan Copyright Act (Act)3 has remained largely untouched since it was first enacted in 1928, the Act has now begun to receive comprehensive scrutiny not only by academic critics, but also by industrial and governmental professionals.
Following an announcement of copyright law reforms in 2010, the Taiwan Intellectual Property Office (TIPO) initiated a campaign to launch panel discussions and public comments on a variety of subjects involving the revision of the Act. TIPO released a “First Draft” series of initial proposals in April 2014, followed by a more sweeping series of “Second Draft” proposals in May 2015. Following public comment, these preliminary changes culminated in January 2016 with the publication of TIPO’s “Third Draft,” adding a further 32 articles to the Act.3 The revisions in the “Third Draft” referred, inter alia, to specific statutory modifications (i) redefining the types of copyright exploitation available under Taiwan law, and (ii) updating the scope of Taiwan’s fair use provisions in light of developing internet and digital convergence. In total, this Third Draft (discussed below) now proposes changes to a total of 149 articles under consideration for the anticipated “revised” Act.
Changes Suggested by The Draft
Definition of Copyrights
A significant number of anticipated changes to the Act deal with the increasing importance of copyright issues directed to e-books, Internet Protocol Television systems (IPTVs) and other cloud computing services, and intangible copyright exploitation. As a fundamental step towards resolving the issues arising from intangible economic rights, the Third Draft has amended and clarified the definitions to address these novel technological advances. According to the Third Draft, “public broadcast” is no longer limited to “a broadcasting system of wire, [or] wireless,” but allows other methods having similar features (such as webcasting, which usually refers to non-interactive linear streams or events). By way of contrast, the interactivity embodied in the definition of “public transmission” has been strengthened by clearly requiring the content of copyrighted works to be received both at a time and at a place chosen by an individual receiver. The Third Draft gives these new copyright definitions further flexibility in terms of the communicated content, bringing more than “sounds or images” to characters and computer programs, just to name examples. (See Sub-paragraphs 6 and 9 of Article 3 of the Third Draft.)
To more carefully regulate certain “public re-communication” behaviors, the Third Draft includes within the definition of “intangible copyright exploitation” a new statutory provision focusing on the simultaneous communication to the public of the content of a work that has been communicated by means of public broadcast or public transmission through screens, loudspeakers or other equipment. Under this provision, a deli owner who turns on a television at his place of business for the entertainment of customers may now fall within the scope of copyright regulation, even though fair use protection may be applicable. Additionally, in the Third Draft the pre-existing rights for public recitation, public performance and public presentation are restructured to provide a better understanding of their respective content. (See Sub-paragraphs 7, 8, 10 of Article 3 of the Third Draft and Article 67 of the same.)
Fair Use
TIPO’s Third Draft also makes significant effort to update the “fair use” scheme embodied in the Act. For instance, Article 66 of the Draft now states that the work of another person that has been publicly released may be publicly presented or publicly performed for a non-profit purpose, provided that (i) no fee is directly or indirectly collected from the viewers or listeners, and (ii) no compensation is given to the performers. Article 66 further states that the work of another person that is publicly broadcast may be “publicly re-communicated” for a non-profit purpose, provided that no fee is directly or indirectly collected from the viewers or listeners. This newly proposed “fair use” provision dispenses with earlier “public broadcast” concepts in favor of an embodiment of “public re-communication” to achieve systematic accuracy. Also, the creation of a statutory license for regular uses distinguishes and limits the scope of the applicable fair uses “by means of public presentation or public performance” to non-regular events, thereby codifying TIPO’s present practices.
In addition, the Third Draft provides supplemental provisions dealing with the rising need to adapt digital based technologies for education and cultural preservation, making it feasible for schools to embrace distance learning as an effective way of teaching and for libraries to establish digital archive programs and utilize their digitalized collections within the frame of copyright laws. As this provision may shift the balance between proprietary and access interests, the Third Draft adds ancillary provisions requiring equitable compensation in certain circumstances (such as when public transmission may be unfavorable to copyright owners) and takes into account the application of technological protection measures when examining the proposed fair use policies. (See Articles 55 to 58 and Article 65.)
Compulsory License and Copyright Pledge
The Third Draft also has adopted a range of mechanisms (e.g. the one dealing with orphan works) first introduced in the Taiwan’s “Law for the Development of the Cultural and Creative Industries (see Articles 23 and 24).” Under these new mechanisms, if a user has made best effort, but has failed to obtain a license from the copyright owner because either its identity or the location of the copyright owner is unknown, then the user may resort to the competent Copyright authority for a compulsory license to utilize the work within the permitted scope or even expedite the time to utilize the work by offering a deposit (see Articles 80 to 82). Similarly, it may become feasible to implement a “pledge” on copyright based on the provisions of Article 83. These provisions are clearly directed to promote the benefits of the copyright system to a broader extent (given that neither the compulsory license nor the copyright pledge is confined to any specific industries).
Other Considerations
While the Third Draft focuses on an evolutionary adaption of Copyright law responding to modern digital-oriented culture, it also deals with long existing issues in the copyright system. For instance, the Third Draft lets stand the prohibition against parallel imports, along with updated provisions regarding distribution and exhaustion (seeArticles 33, 34, 73 and 97). The Third Draft also permits copyright owners to petition Customs for relevant information about accused infringing imports, including the right to obtain samples to analyze for the purpose of detecting infringements (although accused infringers may also move to block any effort to attach alleged copyright infringements upon doubling a statutory deposit). (See Articles 104 to 110, which generally discuss border control.) In another aspect, sound recordings remain within the scope of copyright protection and the exclusive rights provided to performers have been updated to take into consideration the Beijing Treaty on Audiovisual Performances announced by the World Intellectual Property Organization (see Articles 35 and 36).
TIPO also revised the imposition of criminal sanctions against copyright infringers in response to the development of certain copyright-related industries (e.g., the declining CD industry). Furthermore, TIPO has clarified a number of provisions in the Third Draft relating to the entitlement to copyrights as well as the moral rights enjoyed by a copyright owner.
Conclusion
The fundamental copyright law of Taiwan is now undergoing a “digital update.” For the first time in nearly a century, Taiwan has undertaken a comprehensive revision covering a wide array of copyright issues, from intangible copyright exploitation to various provision facilitating fair use and copyright marketing. As a result, the Third Draft has drawn significant legal attention from copyright owners in greater Asia. Both owners and users are encouraged to consider the flexibility embedded in the Third Draft as a critical step on the path to developing comprehensive value creation strategies.
3. Available at the Laws & Regulations Database of The Republic of China
4. All available at the official website of TIPO
For further information, please contact:
Horng-Dar Lin Partner, Winston & Strawn
hdlin@winston.com
