Introduction
Does the Copyright Act definition of "reproduction" violate the principles of clarity and definiteness of law?
Do penalties for unauthorised reproduced optical discs violate article 8 of the Constitution?
Does the term "indictable without complaint" violate the article 7 of the Constitution?
Comment
The judges of the Intellectual Property Court, the Taipei District Court and the Hsinchu District Court all held that the provisions of the Copyright Act regarding the penalty prescribed for offences involving unauthorised reproduced optical discs were suspected of contradicting the Constitution. Therefore, they filed a petition with the Judicial Yuan for constitutional interpretation after each respectively ruling to suspend litigation proceedings. Considering that the disputed provisions they requested for interpretation were in common, all of the cases as requested were consolidated for review. This article discusses the relevant disputes and the main points of Judicial Interpretation No. 804, published on 21 May 2021.
Does the Copyright Act definition of "reproduction" violate the principle of clarity and definiteness of law?
The term "reproduction" in the Copyright Act refers to repetitive production, which is not difficult to comprehend. The term clearly differs from the term "adaption", as the latter refers to a change in the form or content of the original work and implies the existence of creative elements. Whether the circumstances of the case are governed under the 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.
Do penalties for unauthorised reproduced optical discs violate article 8 of the Constitution?
An imprisonment of six months or more is the minimum legal penalty imposed on any party that:
- intends to sell or rent unauthorised reproduced optical discs by reproducing them without permission; or
- distributes unauthorised reproduced optical discs.
This penalty is imposed in order to protect the legitimate rights and interests of authors and the order of the relevant industries, a purpose that is considered to be a significant public interest.
Considering that the degree of harm for this conduct is clearly great, it is recognised that there is a need for more severe punishment. However, such an aggravating penalty is, in principle, at legislative discretion. In addition, the courts may still impose different penalties based on whether the circumstances of the case 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 specified in article 8 thereof.
Does the term "indictable without complaint" violate article 7 of the Constitution?
When the Copyright Act was amended in 2003 and 2004, the main type of unauthorised reproduction – that is, the reproduction of unauthorised works onto optical discs – was considered a serious offence because it would jeopardise the relevant industries severely. Therefore, the minimum legal penalty and the fines for distributing unauthorised reproduced works were aggravated in order to deter such infringement. Also, different treatments for reproductions involving optical and non-optical discs – namely, indicatable without complaint and indicatable only upon complaint – were helpful to deter more severe offences involving the reproduction and distribution of optical discs without authorisation. 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 rights.
According to Judicial Interpretation 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. Similarly, the minimum legal penalty of six months' imprisonment does not contradict the purpose of article 8 of the Constitution to protect personal freedom. Finally, the proviso of article 100 of the Copyright Act does not go against the purpose of article 7 of the Constitution to protect equal rights.
For further information on this topic please contact Cathy Ting or Sophia Chen at Lee and Li Attorneys at Law by telephone (+886 2 2763 8000) or email ([email protected] or [email protected]). The Lee and Li website can be accessed at www.leeandli.com.