Newsletter
TIPO’s Explanations on the Draft Amendments to the Copyright Act Concerning Sound Recordings
On April 8, 2021, the Executive Yuan passed the draft amendments to some provisions of the Copyright Act (hereinafter called the "Draft Amendments") in order to consolidate and amend copyright-related provisions in response to the rapid development of digital technology and the Internet, as well as to review the outdated criminal liability provisions and to meet the needs of the general public. For the full text of the Draft Amendments, please refer to the announcement on the Executive Yuan website (website:
https://www.ey.gov.tw/Page/9277F759E41CCD91/49753055-6239-4cec-83a5-0e242e62a23e). However, some practitioners raised the question that the Draft Amendments may discriminate against the copyright of sound recordings. In this regard, TIPO put forward its explanations specifically.
First, Articles 26 and 26-2 of the Draft Amendments provide that, where a sound recording has been publicly performed or been re-communicated to the public, the author may only claim payment of remuneration for use from the persons who publicly performed or re-communicate the sound recording, unlike the copyright owners of other works who may enjoy the exclusive right to publicly perform their works or the right to re-communicate their works to the public. In addition, Article 29-2 of the Draft Amendments also provides that a sound recording that has been fixed in an audio-visual item shall no longer enjoy the exclusive right to reproduce, distribute, rent, or claim payment of remuneration for its use. The recording industry has therefore questioned the Draft Amendments’ intent to dwarf sound recordings.
To address to the abovementioned concern, TIPO’s explanations are listed as follows:
1. TIPO emphasized that most countries in the world only protect the neighboring rights for sound recordings as it is a recording of the creator’s lyrics or the sound of song through mechanical equipment or recording technology. Although the United States also protects sound recordings under "copyright", the standard of protection for sound recordings in the United States is lower than that in other countries. Taiwan has already surpassed international standards by granting a considerable number of exclusive rights to copyright owners of sound recordings, for instance, broadcast of programs on radio and television.
2. The Draft Amendments still maintain the current standard of protection for sound recordings. While the recording industry's appeal is to extend the protection for public performances (e.g. playing music CDs in cafes) and re-communication to the public (e.g. broadcasting radio programs over loudspeakers in convenience stores) by replacing the claim payment of remuneration under the Draft Amendments with an exclusive right, the said change would mean that people who do not obtain consent or authorization would be at risk of criminal liability. The Draft Amendments, on the other hand, only provide for civil liability for claiming payment of remuneration for use.
3. As for the sound recording that has been fixed in the audiovisual item, according to the international convention and the provisions of most countries, only the sound recording that has been recorded in a sound recording item (e.g. CD) is allowed to enjoy its copyright. Once it is legally recorded in an audiovisual item such as movies or TV dramas (e.g. DVD), the owner of the said sound recording can no longer claim the right to exploit the audiovisual item lest the subsequent circulation of the said audiovisual item is affected. The provisions of Article 29-2 of the Draft Amendments are in line with international standards, which mean that, when a sound recording is used alone (e.g. CD), it is still possible to claim rights in its entirety, but once it has been legally recorded in an audiovisual item such as movies or TV dramas (e.g. DVD), the owner of the sound recording can no longer claim rights with regard to its exploitation in the audiovisual object.
Moreover, addressing to the musicians who think that the senior citizens, playing music in parks for dance accompaniment without paying for it, will infringe their rights and interests, TIPO stressed that the current Copyright Act stipulates that the recurrent playing of music in public venues is an act of public performance which uses musical works. In principle, authorization must be obtained, or otherwise there will be criminal liability. However, in addition to protecting the rights and interests of authors, the Copyright Act should also take into account the legislative purpose of social public interests and balance the interests of the exploiter of the work and the rights holder. Therefore, for the persons who bring their own equipment to play or broadcast in the activities held for the purpose of social assistance, public safety, public health and personal physical and mental health and in open spaces such as streets, parks, buildings or other outdoor venues open to the public, Article 55 of the Draft Amendments stipulates that such public use is fair use and authorization is not required, thereby avoiding the risk of criminal liability for the general public. TIPO further indicated that precedents for the practices adopted by the Draft Amendments can also be found in the United States and Japan; for example, the non-profit use of music accompaniment for sports and dance in parks is considered fair use without charge. The current provisions of the Copyright Act, in contrast, seems too stringent and requires further amendments.
The foregoing explanations are made by the administrative competent authority in response to the content of the Draft Amendments passed by the Executive Yuan, and are not formal regulations or orders. The development of formal amendments is still pending discussion in the Legislative Yuan for the days to come.