Introduction
New definitions of "public broadcast" and "public transmission"
Addition of public retransmission right
Amendment of fair use clauses
Addition of mandatory authorisation provisions
New penalties for publishing internet ads for sale of pirated articles
Calculation of civil damages based on royalties
Deletion of six-month minimum statutory penalty
Agreement on ownership of economic rights
Addition of regulations on registration of copyright pledges
In keeping with the rapid development of digital technology and the Internet, the Taiwan Intellectual Property Office has proposed draft amendments to the Copyright Act after considering various international treaties and the copyright legislation of other countries. On 8 April 2021 the Executive Yuan reviewed and approved the amendments and on 12 April 2021 the draft amendments were sent to the Legislative Yuan. They are now under review by the Economic Commission of the Legislative Yuan.
The draft amendments add nine new articles to the Copyright Act and revise 37 other articles. This is the most significant change to the Copyright Act in the past 20 years. This article outlines the key points of the draft amendments.
New definitions of "public broadcast" and "public transmission"
With the maximum rate of network bandwidth having increased and the rapid development of related applied technology and science, intangible use rights have gradually become the core of copyrights. The transmission of linear programmes and the broadcasting of programmes through the Internet is common, and it is difficult for consumers to distinguish the type of right based on the technology used. Therefore, the Copyright Act has been revised so that regardless of whether a programme is broadcasted through general TV stations, radio stations or the Internet (this is not allowed for the replaying of a programme), all are classified as "public broadcasts". The network technology used is no longer the criteria to distinguish a public broadcast from a public transmission.
Addition of public retransmission right
"Public retransmission" now refers to the content of a work being broadcasted or transmitted to the public in real time on a screen, loudspeaker or other mechanical equipment in a public place. For example, a YouTube video displayed on a screen in the supermarket will be deemed to be public retransmission after the law is revised. The previous explanation adopted by the copyright authority (ie, the Intellectual Property Office) – namely, that this kind of public retransmission does not constitute a use of the work – will no longer apply. This will protect the rights and interests of copyright owners.
The articles of the Copyright Act relating to the fair use of the following have been amended or updated:
- works for legislative, judicial, administrative or educational purposes;
- guidelines for archived works;
- works in the name of a public juristic person;
- citations;
- works for non-profit purposes;
- works retransmitted by household equipment;
- displays and interpretations of art or photographic works; and
- reprints of current affairs issues.
Further, after considering foreign legislation, the amendments have added articles in connection with:
- fair use for distance-teaching purposes;
- National Library digital collections; and
- guidelines for collection agencies.
Addition of mandatory authorisation provisions
If authorisation cannot be obtained due to the owners of a work or the location thereof being unknown (such works are known as "orphan works"), this will hinder cultural inheritance and circulation. In this regard, the amendments have moved the current mandatory authorisation provisions for orphan works in the Development of the Cultural and Creative Industries Act to the Copyright Act. To enhance the effectiveness of these provisions, new provisions have been added to allow applicants to use a work during the review period after paying a deposit.
New penalties for publishing internet ads for sale of pirated articles
Currently, there are no penalties for publishing information on the sale of pirated articles online. To curb the circulation of pirated articles in a timely manner, the amendments state that the online publication of ads for the sale of pirated articles will be deemed to be infringing. For example, publishing information online about the sale of flash drives that contain pirated music files or game consoles that come with pirated game software for free will be punishable by imprisonment for up to two years and the party will be liable for civil responsibilities.
Calculation of civil damages based on royalties
When the victim of infringement files a civil suit and seeks damages in court, they may request that damages are calculated on the basis of royalties obtained from licensing. This eases the victim's burden of providing proof and thereby increases their willingness to choose civil damages over criminal litigation.
Deletion of six-month minimum statutory penalty
Several provisions in force relating to copyright infringement stipulate a six-month minimum statutory penalty. This leads to an imbalance whereby disproportionate penalties are handed out for relatively minor violations. The amendments delete the minimum statutory penalty, allowing the court to consider each case independently without having to hand out undue penalties.
Agreement on ownership of economic rights
According to the current Copyright Act, where works are completed by an employee or a person under commission, the authors are the employee or the commissioned person if no agreement stipulates otherwise. The economic rights can be enjoyed only by the employee or the employer, or the commissioned person or the commissioning person, respectively. This is inflexible and not in line with commercial dealings. However, following the amendment, the employer and the employee, or the commissioning person and the commissioned person, may come to an agreement on the ownership of the economic rights whereby:
- a third party owns the economic rights; or
- both the employer and the employee, or the commissioning person and the commissioned person, enjoy a part of the rights.
This complies with the principle of freedom of contract and satisfies the need to obtain economic rights in industry.
Addition of regulations on registration of copyright pledges
Article 23 of the Development of the Cultural and Creative Industries Act provides 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 current social development. To make these provisions apply to all copyright owners, the regulations on the registration of copyright pledges have been added to the Copyright Act.
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.