Newsletter
Overview of the Draft of Copyright Act Amendments
In keeping with the rapid development of digital technology and the Internet, Taiwan Intellectual Property Office has proposed draft amendments to the Copyright Act after considering the international treaties and the copyright enactment of advanced countries, which is reviewed and approved by the Executive Yuan on April 8, 2021. The Draft Amendments have 9 Articles been added and 37 Articles been revised. This is the most significant adjustment in the past 20 years. The key points of the Draft Amendments are as follows:
I. Adjust the Definitions of "Public Broadcast" and "Public Transmission". The Network Technology Used is No Longer the Criteria to Distinguish the Type of Copyrights
With the maximum rate of network bandwidth increased and the rapid development of related applied technology and science, intangible use rights have gradually become the core of the copyrights. Transmission of linear programs or broadcast programs through the Internet is very common, and it is difficult for consumers to distinguish the types of rights based on the technology used. Therefore, it is revised that no matter the same programs are broadcasted through general TV stations, radio stations or broadcast through the Internet (not allowed for replaying), all classified as "public broadcast", and the network technology used is no longer the criteria to distinguish "public broadcast" from "public transmission".
II. Adding Public Re-Transmission Right
The public re-transmission means that the content of a publicly broadcasted or publicly transmitted work is broadcasted or transmitted to the public at the same time on a screen, loudspeaker or other mechanical equipment in a public place. For example: a YouTube video displayed on the screen in the supermarket will be deemed public re-transmission after the law is revised. The previous explanation adopted by the copyright authority (the Intellectual Property Office) that this kind of public re-transmission is a purely boot-up of above-mentioned equipment which is not the use of the work will no longer be applicable in order to protect the rights and interests of the copyright owner.
III. Amendment on Fair Use Clauses
Amend or update the articles in connection with copyright fair use for the work of legislative or administrative purposes, judicial and administrative procedures and educational purposes, guidelines for archived works, work in the name of public juristic person, citations, work of non-profit purposes, work re-transmitted by household equipment, display and interpretation of art or photographic works, and reprinting of current affairs issues, etc. Moreover, after considering foreign legislations, adding the articles in connection with fair use for distance teaching purpose, digital collections of the National Library, and guidelines for collection agencies.
IV. Mandatory Authorization Provisions are Added
If authorization cannot be obtained due to the owners are unknown or where they are located are unknown (i.e., orphan works), it will hinder cultural inheritance and circulation. In this respect, after the amendments, the current mandatory authorization provisions for orphan works in the Development of the Cultural and Creative Industries Act will be moved to Copyright Act, and in order to enhance the effectiveness, new provisions have been added that during the reviewing period, the applicant is allowed to use the work first after paying the deposit.
V. Publishing Advertisements on the Internet for the Sale of Pirated Articles Shall be Deemed Infringing
Currently, no penalties for publishing information on the sale of pirated articles online are provided. In order to curb the circulation of pirated articles in a timely manner, it is amended that online publications of advertisements for the sale of pirated articles shall be deemed infringing. For instance, any person publishing online information about the sale of flash drives containing pirated music files, or game consoles that come with pirated game software for free, shall be punishable by imprisonment for no more than two years and be liable to civil responsibilities.
VI. The Option of Calculating Civil Damages Based on Royalties is Now Available
When the victim of infringement files a civil suit and seeks damages in court, he or she may request that damages be calculated on the basis of royalties obtained from licensing. This eases the victim's burden of providing proof and thereby increases the willingness to choose civil damages over criminal litigation.
VII. The Minimum Statutory Penalty of Six Months is Deleted.
Several provisions in force relating to copyright infringement stipulate a six-month minimum statutory penalty, leading to the imbalance of handing out disproportionate penalties in cases with relatively minor violations. This amendment deletes the minimum statutory penalty, allowing the Court to consider each case independently without having to hand out undue penalties.
VIII. The Employer and the Employee or the Commissioning Person and Commissioned Person May Agree on the Ownership of the Economic Right
According to the current Copyright Act, works completed by an employee and works completed by a person under commission, the employee and the commissioned person are the authors, if no agreement stipulates; and economic right can be only enjoyed by the employee or employer and commissioned person or commissioning person respectively which is inflexible and is not in line with the commercial dealings. After the amendment, the employer and the employee or the commissioning person and commissioned person may agree on the ownership of the economic right, or may agree to a third party, or each may enjoy a part of the rights to comply with the principle of freedom of contract and satisfy the needs for obtaining economic rights among industries.
IX. Adding the Regulations on the Registration of Copyright Pledges
Article 23 of Development of the Cultural and Creative Industries Act provides the provisions for the registration of copyright pledges, but its scope of application is limited to the cultural and creative industries, which does not meet the needs of social developments. In order to make it applicable to all copyright owners, the regulations on the registration of copyright pledges have been added.
The Draft Amendments was sent to the Legislative Yuan on 12 April 2021 and now is under reviewing by the Economic Commission of the Legislative Yuan.