9 December 2021
To protect the rights of copyright owners and curb rampant piracy, Article 91 of the Copyright Act imposes criminal liability on offenders of illegal reproduction s of others’ work and aggravates such liability for those reproducing or reproducing on CD with the intent to sell or rent out the copied work. However, the Applicant claims that the application of the above provision was overly harsh. For example, the meaning of “reproduction” is hard to interpret, which violates the Legal Certainty Principle. Moreover, the Applicant claims that since, as technology advances, the use of CDs are much less common, and people are increasingly storing information with flash drives, hard drives, or cloud devices as replacements, the penalty of imposing six months minimum imprisonment for “CD reproduction s” and the listing of such behavior as not an offense actionable only upon complaint are infringing peoples’ freedom and violating the Principle of Equality. In response, the justice has issued the No.804 interpretation this year, holding the aforementioned provisions constitutional. The following is a brief summary of the interpretation.
Firstly, the justice held that the imposition of criminal liability on offenders of illegal “reproduction” does not violate the Legal Certainty Principle. The meaning of reproduction under the Copyright Act means the act of copying, which isn’t difficult to understand and is clearly different from derivative works, whereby creativity is involved in shifting the content or style of an original work. Furthermore, whether the facts of this case fall into the scope of “reproduction” is generally foreseeable by the regulated subject and can be confirmed or decided through the judicial process. Therefore, it does not violate the Legal Certainty Principle.
Moreover, the justice held that the aggravation of criminal liability on the basis of “CD reproduction” does not violate the Principle of Equality. The reason for such aggravation was the high gain, low-cost nature of CD piracy due to its large storage capacity and ease of piracy. Indeed, back then, the provision’s primary crime was “pirated CDs.” As such, “CD reproduction” imposes an aggravated liability because it is considered severely vicious and harmful to the relevant copyright industry. Furthermore, listing it as not an offense actionable only upon complaint may achieve a certain degree of deterrent effect and thus not a violation of the Principle of Equality.
The request for this interpretation focuses mainly on the necessity for aggravated liability in “CD reproduction” under the Copyright Act. It’s understandable for the justice to consider the circumstances at the time of legislation to weigh the appropriateness of the provision. However, it is the author’s opinion that, with the advancement of technology, copying the creative works of others has become increasingly easy. Moreover, many computers nowadays no longer use CD drive; the public generally uses the Internet to transmit information. Thus, using “CD reproduction” as the basis for aggravated liability is obviously outdated since it does not target actual severe offenders accurately. Accordingly, legislators should review the appropriateness of the above provision to avoid asymmetry between the law and societal development. It’s worth noting that the Intellectual Property Bureau of the Ministry of Economic Affairs revised the draft amendment to the Copyright Act on April 8, 110, amending the six months minimum imprisonment penalty for certain specific reproducing acts. This suggests a trend toward loosened criminal liability. How the contents of criminal liability for reproducing acts will develop remains uncertain and is thus worthy of attention.
For further information, please contact:
Jane Tsai, Partner, Lee Tsai & Partners
lawtec@leetsai.com
