Newsletter
The Executive Yuan Approved the Draft Amendment to the Copyright Act
As presented in the Lee & Li Bulletin in May 2016, Taiwan has been aggressively working on joining the Trans-Pacific Partnership Agreement (hereinafter the “TPP”), and the Taiwan Intellectual Property Office (hereinafter the “TIPO”) of the Ministry of Economic Affairs thereby completed a draft amendment to the Copyright Act on May 10th 2016. For a detailed introduction with regard to this, please refer to the article published in the Lee & Li Bulletin in May 2016 (Chinese:http://www.leeandli.com/TW/NewslettersDetail/5668.htm; English: http://www.leeandli.com/EN/NewslettersDetail/5668.htm).
The Executive Yuan approved, in part, the draft amendment to the Copyright Act on August 11th 2016, and will make a written request to the Legislative Yuan to review the draft amendment. Compared with the original version completed by the TIPO on May 10th 2016, the version approved by the Executive Yuan excludes the clause “extending the term of economic rights for works to the author’s lifetime plus 70 years” and maintains a term defined as the author’s lifetime plus 50 years as provided in the current Copyright Act. The two versions have little difference in the remaining focal points.
Regarding the draft amendment approved by the Executive Yuan, the focal points are as follows:
A. Adding criminal penalties for circumventing technological protection measures (Article 96-1 of the amendment):
Should acts of disarming, destroying, or any other means circumventing (circumvention behavior) the technological protection measures employed by copyright owners (for instance, an enterprise does not purchase legitimate software but uses the software by installing an illegitimate version and entering a serial number instead) be performed for commercial purposes or with the intent to make profits, criminal penalties will be imposed on infringers. In addition, Paragraph 2, Article 80-2 of the current Copyright Act provides that any equipment, device, component, technology or information for disarming, destroying, or circumventing technological protection measures shall not, without legal authorization, be manufactured, imported, offered to the public for use, or offered as services to the public. According to the amendment, under situations regulated in Paragraph 2 of Article 80-2, criminal penalties will be restricted to infringements of a commercial nature, or with the intent to make profits.
B. Adjusting crimes prosecuted ex officio in adaptation to prosecution upon initiative (Articles 91, 91-1 and 100 of the amendment):
1. The amendment redefines two infringements as crimes prosecuted ex officio: reproducing a work with the intent to sell or rent as set forth in Paragraph 2 of Article 91, and distributing a copy in digital format with the intent to make profits and knowing that the copy infringes on economic rights as set forth in Paragraph 2 of Article 91-1. Moreover, in response to an increase in online privacy due to the development of digital technologies, any infringement of the public transmission right as pursuant to Article 92 of the current Copyright Act is redefined as a crime prosecuted ex officio.
2. In order to reduce the fear that non-material infringements will be prosecuted by government powers, some restrictions were made to the amendment which define that a crime prosecuted ex officio is applicable merely to exploitation of a work in whole and without any change (for instance, uploading, in whole, a musical work, novel or movie without authorization), and the infringement shall be made to works provided by the economic rights holder at a cost and shall cause damages of more than NT$1,000,000 to the holder.
C. Adding civil and criminal protection for encrypted program-carrying satellites and cable signals (Articles 104-1 to 104-4 of the amendment).
D. Effective date (Article 117 of the amendment):
According to the amendment, apart from the fact that “Adjusting crimes prosecuted ex officio in adaptation to prosecution upon initiative (Articles 91, 91-1 and 100 of the amendment)” shall come into force from the day set separately by the Executive Yuan, all remaining amendments shall become effective upon the third reading passage by the Legislative Yuan and promulgation by the President.
The focal points illustrated above are from the draft amendment approved by the Executive Yuan. The amendment will not come into force until the third reading passage by the Legislative Yuan.