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Interpretation No. 804 on Offences Involving Unauthorized Reproduced Optical Disks



The judges of the Intellectual Property Court, the Taipei District Court and the Hsinchu District Court all held during the trial of the cases that the provisions of the Copyright Act regarding the penalty and the "indictable without complaint" prescribed for the offences involving unauthorized reproduced optical disks are suspected of contradicting the Constitution, so they filed a petition with the Judicial Yuan for constitutional interpretation after they had respectively ruled to suspend the litigation proceedings. Considering the disputed provisions they requested for interpretation are in common, all the cases as requested were consolidated for review. Relevant disputes and the main points of Judicial Interpretation No. 804 published on 21 May 21 2021are given below:

 

I. Whether the definition of "reproduction" under the Copyright Act violates the principle of clarity and definiteness of law.

 

The term "reproduction" defined in the Copyright Act refers to repetitive production, which is not difficult to comprehend. Such term distinctively differs from the term "adaption" as the latter refers to the change of the form or content of original works and has creative elements. Next, whether or not the circumstances of the case are governed under said definition of "reproduction" is foreseeable by an average person and can be determined and judged through judicial review. Therefore, the principle of clarity and definiteness of law is not violated.

 

II. Where anyone intends to sell or rent unauthorized reproduced optical disks, he/she shall be punished with the minimum legal penalty for an imprisonment of six months or more. Does such regulation violate Article 8 of the Constitution about personal freedom guarantee?

 

An imprisonment of six months or more is the minimum legal penalty imposed on anyone who intends to sell or rent unauthorized reproduced optical disks by unauthorized reproducing the same, or who distributes unauthorized reproduced optical disks, in order to protect the legitimate rights and interests of the authors and the order of the relevant industries. The purpose thereof is considered a significant public interest. Considering the degree of harm for said conduct is obviously greater, it is recognized that there is a need for severe punishment. Still, such aggravating penalty is, in principle, legislative discretion. In addition, the court may still declare different penalties based on the different circumstances of the cases which meet the criminal elements. Accordingly, the minimum legal penalty of six months' imprisonment does not violate the principle of proportionate punishment to offences under the Constitution, nor does it go against the purpose of personal freedom guarantee specified in Article 8 of the Constitution.

 

III. Do the regulations providing that the minimum legal penalty and the amount of fines for the offence of distributing reproduced optical disks without authorization are increased that that the offences of unauthorized reproduction and distribution of optical disks are both crimes indictable without complaint, violate the protection of equal right under Article 7 of the Constitution.

 

When the Copyright Act was amended in 2003 and 2004, considering the major type of unauthorized reproduction, i.e. reproduction of unauthorized works onto optical disks, was considered a serious offence because it would jeopardize the relevant industries severely, the minimum legal penalty and the amount of fines for an offence of distributing unauthorized reproduced works were aggravated in order to deter said infringement; also, different treatments for reproductions involving optical disks and non-optical disks, i.e. indicatable without complaint vs. indicatable only upon complaint, were helpful to intimidate severer offences involving reproduction and distribution of optical disks without authorization. As the regulations are substantially related to the purposes to be achieved, they do not violate the purpose of Article 7 of the Constitution on the protection of equal right.

 

According to Judicial Interpretations No. 804, the term "reproduction" stipulated in Paragraphs 2 and 3 of Article 91 and Paragraph 3 of Article 91-1 of the Copyright Act does not violate the principle of clarity and definiteness of law, nor does the minimum legal penalty of six months' imprisonment contradicts the purpose of Article 8 of the Constitution to protect personal freedom. Likewise, the proviso of Article 100 of the Copyright Act does not go against the purpose of Article 7 of the Constitution Law to protect equal right.

 

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