Introduction
Offences indictable by prosecution

Penalties relating to pirated optical discs


Introduction

The Taiwanese government has reviewed and revised various laws and regulations to ensure that they meet the standards set out in the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).

The following aspects of the Copyright Act differed from the requirements of the CPTPP:

  • the scope of the crimes indictable by public prosecution, which was limited to unauthorised reproduction and distribution of optical discs in the Copyright Act; and
  • the stipulation of criminal procedures and penalties to be applied in certain cases of wilful copyright piracy.

On 15 April 2022, the Legislative Yuan passed various amendments to the Copyright Act, which were promulgated by the president on 4 May 2022. The implementation date will be determined by the Executive Yuan, in line with Taiwan's accession to the CPTPP (article 117 of the amendments). This article outlines the main changes introduced by the amendments.

Offences indictable by prosecution

Article 100 was amended to stipulate that the following are considered offences that are indictable by prosecution where they constitute a serious infringement:

  • illegal digital piracy;
  • distribution; and
  • public transmission.

The three conditions to determine an instance of serious infringement are:

  • "infringement of work provided not for free by another person";
  • "reproduction in the original form of the unauthorised work (100% reproduction)"; and
  • "infringements causing damages exceeding one million New Taiwan Dollars".

Article 100 now reads as follows:

The offenses specified in this chapter are actionable only upon complaint; provided, this shall not apply in any of the following circumstances if "infringement of work provided not for free by another person", "reproduction in the original form of the unauthorized work (100% reproduction)" and/or "infringements causing damages exceeding one million New Taiwan Dollars":

(1) violates the provisions of Article 91-2 and the reproduction work is in digital format;

(2) violates the provisions of Article 91-1(2), and for the purpose of making a profit, distributes or with intent to distribute publicly, displays or possesses a copy knowing that it infringes on economic rights, and the reproduction work is in digital format;

(3) violates the provisions of Article 92 and infringes on the economic rights of another person without authorization by means of public transmission.

Penalties relating to pirated optical discs

In line with the amendment to article 100, content under articles 91(3) and 91-1(3) with respect to the increased penalties under the current law for the indictable offence of reproduction and distribution of pirated optical discs has been deleted. Such penalties will instead revert to general liabilities for reproduction and distribution. Articles 98 and 98-1, which prescribe the corresponding provisions of confiscation and forfeiture, have also been deleted.

Article 91 now reads as follows:

A person who infringes on the economic rights of another person by means of reproducing the work without authorization shall be punished by imprisonment for not more than three years, detention, or in lieu thereof or in addition thereto a fine not more than seven hundred and fifty thousand New Taiwan Dollars.

A person who infringes on the economic rights of another person by means of reproducing the work without authorization with the intent to sell or rent shall be imprisoned not less than six months and not more than five years, and in addition thereto, may be fined not less than two hundred thousand and not more than two million New Taiwan Dollars.

A work only for personal reference or fair use of a work does not constitute infringement of copyright.

Article 91-1 now reads as follows:

A person who infringes on the economic rights of another person by distributing the original of a work or a copy thereof by transfer of ownership without authorization shall be punished by imprisonment for not more than three years, detention, or in lieu thereof or in addition thereto, a fine not more than five hundred thousand New Taiwan Dollars.

A person who distributes or with intent to distribute publicly, displays or possesses a copy knowing that it infringes on economic rights shall be imprisoned not more than three years and, in addition thereto, may be fined not less than seventy thousand and not more than seven hundred and fifty thousand New Taiwan Dollars.

Punishment of an offense in the preceding paragraph may be reduced if the offender confesses the source of the goods, resulting in the uncovering thereof.

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.