On 8 April 2021 the Executive Yuan passed draft amendments to various provisions of the Copyright Act ("the draft amendments") (for further details please see "Overview of Copyright Act draft amendments")(1) in order to:
- consolidate and amend copyright-related provisions in response to the rapid development of digital technology and the Internet;
- review the outdated criminal liability provisions; and
- meet the needs of the general public.
However, some practitioners raised concerns that the draft amendments could discriminate against the copyright of sound recordings. The Taiwan Intellectual Property Office (TIPO) has published explanations to address such concerns.
Articles 26 and 26(2) of the draft amendments provide that where a sound recording has been publicly performed or recommunicated to the public, the author may only claim remuneration payment from the persons who publicly performed or recommunicated the sound recording. However, copyright owners of other works may enjoy the exclusive right to publicly perform their works or recommunicate them to the public.
In addition, article 29(2) of the draft amendments provides that the owner of a sound recording that has been fixed in an audiovisual item (eg, a DVD) will no longer enjoy the exclusive right to reproduce, distribute, rent or claim remuneration payments for its use. The recording industry has therefore questioned whether the draft amendments undermine the protection of sound recordings.
To address these concerns, the TIPO published the following explanations.
Protection of sound recordings in other countries
Most countries in the world protect only the neighbouring rights of sound recordings as they constitute a recording, through mechanical equipment or recording technology, of the creator's lyrics or the sound of a song. 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, the broadcasting of programmes on radio and television.
Civil versus criminal liability
The draft amendments maintain the current standard of protection for sound recordings. While the recording industry's appeal is to extend the protection for public performances (eg, playing CDs in cafes) and recommunication to the public (eg, broadcasting radio programmes over loudspeakers in convenience stores) by replacing the ability to claim remuneration payments under the draft amendments with an exclusive right, this change would mean that people who do not obtain consent or authorisation would be at risk of criminal liability. The draft amendments, on the other hand, provide only for civil liability for claiming remuneration payments.
As for sound recordings that have been fixed in an audiovisual item, according to international conventions and the provisions of most countries, only sound recordings that have been recorded in a sound recording item (eg, a CD) are allowed to enjoy copyright. If a recording has been legally recorded in an audiovisual item (eg, a film or TV drama on a DVD) the owner can no longer claim the right to exploit the audiovisual item because this could affect the subsequent circulation of the audiovisual item. The provisions of article 29(2) of the draft amendments are in line with international standards in that when a sound recording is used alone (eg, on a CD), it is still possible to claim rights in its entirety, but once it has been legally recorded in an audiovisual item (eg, on a DVD), the owner of the sound recording can no longer claim rights with regard to its exploitation in the audiovisual object.
In response to musicians who claimed that senior citizens playing music in parks as accompaniment to a dance without paying for it would infringe their rights and interests, the TIPO stressed that the current Copyright Act stipulates that the recurrent playing of music in public venues is an act of public performance that uses musical works. In principle, authorisation must be obtained; 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, with regard to people who bring their own equipment to play or broadcast music as part of activities for the purpose of social assistance, public safety, public health or personal physical and mental health 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 authorisation is not required, thereby avoiding the risk of criminal liability for the general public.
The 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 and does not carry a charge. The current provisions of the Copyright Act, in contrast, seem too stringent and require further amendments.
The foregoing explanations were 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 further information on this topic please contact Tsung-Yuan Shen at Lee and Li Attorneys at Law by telephone (+886 2 2763 8000) or email ([email protected]). The Lee and Li website can be accessed at www.leeandli.com.
(1) For the full text of the draft amendments, click here.