Source: TIPO

On October 26, 2017, the Executive Yuan passed a draft amendment to the Copyright Act during the 3,573rd meeting of the Executive yuan. Taiwan’s Copyright Act has not seen any major reviews or amendments during the past twenty years. These amendments were pursued in response to the high rate of development in the fields of the internet and of digital technology. The Taiwan Intellectual Property Office (hereinafter referred to as “TIPO”) officially began the amendment process in 2010. Over the course of the amendment process, TIPO convened 47 consultative meetings as well as 6 public hearings. TIPO also reviewed international treaties as well as the copyright law regimes of developed nations, using what they had learned to draw up a comprehensive draft amendment bill. It was decided that the amendments were to be sent to the Legislative Yuan for final approval after they were passed by the fifth cabinet review of the Executive Yuan. Of the 145 alterations to the existing Copyright Law included in the bill, there were 93 amendments and 17 new articles. These changes affect up to 80% of the Copyright Act as it is currently construed.

The key points of the amendments to the Copyright Act are as follows:

1. Revised definitions of “public broadcasting” and “public transmission,” also creating “retransmission rights.”

a. In consideration of the fact that technology is constantly getting more advanced and the bandwidth of networks is continuously increasing, as well as the fact that the linear transmission of programs or broadcasts online has become quite common, if, in response to regulations pertaining to consolidation of rights for digital conversion, another drive to distinguish between the rights based on which technological medium from which they derive was made, this would not be in line with the status quo. Thus, according to this amendment, all manner of broadcasts, be they from television or via an online platform, shall be considered public broadcasts. As such, there shall no longer be any legal distinction between them as it pertains to this area.

b. The new “right to retransmit” has been added so as to enhance the protection of copyright owners. The retransmission rights can be illustrated by the following example: if a place of business broadcasts a video over the internet or through a device containing a screen, said businesses must obtain prior authorization from that video's rights holder.

2. Revisions to Performer’s Rights

This provision has been added in response to international trends. It entails that persons whose acting appears in a physical audio-visual form such as a digital video disks shall receive the same rights as persons whose music appears on compact disks.

3. Amendments to the Limitations on Economic Rights

The Taiwanese Copyright Act seeks to reconcile the public interest with the safeguarding of the rights and interests of authors. To this end, the following amendments, which shall safeguard the public's legitimate use of a work have been formulated:

a. A revision of what constitutes the reasonable use of distance learning with respect to classroom instruction has been drafted, so as to increase the effectiveness of teaching through the use of technology in the classroom.

b. taking into account the trend of digital reading, the provision that any and all libraries or other repositories must provide online access to reading materials under certain requirements.

c. This provision deals with the issue of criminal liability being applied to those who use a work for a regularly-held non-profit activity without having obtained prior authorization from the rights holder. Pending the passage of this amendment, those who use such works for regularly-held non-profit activities will no longer be required to obtain authorization or consent from the rights holder, but shall instead make a reasonable payment to the rights holder for the use of a work. Furthermore, so as to be in consonance with the needs of the citizenry, a provision has been specifically added so as to no longer require citizens using a work used as a part of a daily routine of citizens (such as dancing in a park or engaging in another health-related activity) to pay for authorization for use of that work. The revision that one in a situation such as one in which the participations in an activity of the aforementioned type use their own equipment to play music without having to pay a fee or to receive prior authorization. Thus, this amendment fulfils the needs of the public.

4. Revision on the Provisions Pertaining to Compulsory Licensing Where the Author is Unknown

This amendment pertains to the engendering of the development of cultural industries. In the event that a cultural work cannot be exploited after a long period of time due to either the identity or the location of the copyright owner being unknown, said lack of use is to the detriment of both the passing-on and dissemination of culture. This amendment incorporates the provision from the Law for the Development of the Cultural and Creative Industries regarding compulsory authorization in instances in which the author is unknown into the Copyright Act. Prescription was also taken into account when this provision was added during the review period. The provision entails that the applicant may use a work subsequent to paying a deposit for the use of said work. This eliminates the need for the user wait for the competent authority to approve the use of that work.

5. Amendments to the Outdated Provisions Pertaining to Criminal Liability

Pending the passage of this amendment, those who sell unauthorized, but genuine foreign imports within Taiwan will no longer be considered criminally responsible. Furthermore, matters relating to the unauthorized distribution of genuine products will be handled through civil channels. This revision was drafted both because greater distinction was needed between penalties for the unauthorized sale of genuine and pirated products and because these changes bring the law more in line with public sentiment.

This draft amendment bill is accounts for the most comprehensive revision of Taiwan's Copyright Law in the last 20 years. The amendments will enhance protections of copyright owners while effectively curbing copyright infringement. Moreover, by removing possible doubts over whether or not an action constitutes infringement, the amendments serve to reconcile the rights and interests of the public with those of copyright holders, so as to protect the public's legitimate use of copyrighted works. These amendments will promote the development and boost the creativity of cultural and creative industries in Taiwan. Lastly, these amendments will strengthen the overall competitiveness of Taiwan.

This draft amendment bill is a part of larger "Asia-Silicon Valley Promotion Scheme" being promoted by the Executive Yuan. TIPO will actively push for the adoption of these amendments into law during the third reading of the Legislative Yuan as it believes that these amendments will allow for the establishment of a legal system that is amenable to the digital economic, also allowing for a better legal regime as it pertains to digital copyrights.