Taiwan Intellectual Property Office, Link
In order to accommodate the rapid growth of both digital technology and the Internet, TIPO has drafted an amendment to the Copyright Act. The proposed changes factor in both international treaty provisions and the copyright systems of those countries that are ahead of the curve. With the addition of 9 articles and the revision of 37, this would be the biggest revamp of the Act in 20 years. Another law up for amendment is the Copyright Collective Management Organization Act. TIPO hopes that changes to this statute will ensure a fairer and more effective licensing market—one in which works can be easily circulated and used, and one where the rights and interests of copyright owners are fully protected. Having been reviewed by the Executive Yuan Council on April 8, 2021, both drafts will now be submitted to the Legislative Yuan for further deliberation.
Key points of the Copyright Act amendment are as follows:
- Changes to the definitions of “public broadcast” and “public transmission”
Greater bandwidth speeds and other technological advances have made it easier, and indeed more common, for linear broadcasts and programs to be transmitted online. Unfortunately, this has created somewhat of a legal gray area, with consumers finding it increasingly difficult to distinguish between different types of rights as they pertain to different types of technologies. In accordance with digital convergence, the amendment to the Copyright Act seeks to provide clarity on this issue. Under the proposed changes, the term “public broadcast” would cover any linear broadcast (i.e., one that cannot be rewatched), regardless of whether it is transmitted via TV, radio, or the Internet. What this means is that there would no longer be a medium-based distinction between “public broadcasting” and “public transmission.” To give an example: If the Taiwanese radio station VHBN decided to broadcast one of its programs on the Internet platform HiChannel, that program would be considered a “public broadcast” under the amended Act.
- Simultaneous further communication to the public
A provision has been added that would broaden the scope of copyright liability to include simultaneous further communication to the public. This is to ensure greater protection for right holders and their interests. An example of such communication would be where a retailer plays a YouTube video inside one of its stores.
- Limitations to copyright (fair use)
– In response to recent technological advances, a “fair use” exemption has been added for distance (off-campus) learning. With many schools now moving courses online, the Internet has become a critical tool in guaranteeing teaching efficacy in the digital age. That is why this exemption would permit educators to use copyrighted works other than textbooks without having to obtain prior authorization.
– The amendment would obligate libraries and other archival institutions to provide (subject to certain conditions) intranet access to patrons, allowing online perusal on the institution’s premises. This change reflects the growing trend toward digital reading.
– A newly drafted article would authorize museums to use copyrighted materials when providing the public with relevant indexes of archived works. It is hoped that this might expose a wider audience to culturally significant art and help the public more easily locate and browse collections from different museums. The ultimate aims of the article are to foster cultural continuity and to facilitate the circulation of cultural works.
– As it stands, criminal liability for unauthorized copyright use also extends to regularly held nonprofit events. Once the proposed amendment is adopted, this will no longer be the case. Beyond fee payment, there would be no additional obligation to obtain authorization from the right holder. If, for example, a theater or dance troupe were to stage weekly nonprofit performances, fee payment would suffice in order to prevent liability for the use of copyrighted material. Furthermore, group recreational activities aimed at promoting mental and physical health would be exempt from the fee requirement entirely. Music played from one’s own personal devices as part of public dance or exercise activities would thus fall outside the scope of liability. This change is designed to meet the everyday needs of the public.
- Addition of Provisions on Compulsory Licensing of Works of Unknown Owner
Obtaining a copyright license is especially difficult where, due to the age of a work or for whatever other reason, a right holder is either unknown or uncontactable. This problem constitutes an unnecessary obstacle not only to cultural continuity but also to the free circulation of culturally significant works. To rectify this issue, the proposed amendment would incorporate into the Copyright Act existing provisions on the compulsory licensing of works of unknown owner; these are currently to be found in the Development of the Cultural and Creative Industries Act. Meanwhile, a further provision would allow license applicants to begin using the work of an unknown owner as soon as they have paid a deposit, meaning that they would not have to wait for approval. These changes should go a long way in spurring the development of the cultural industry.
- Online pirated goods advertising shall be deemed an infringement of copyright
Online ads have become an important sales channel for those vending pirated goods through the Internet. Needless to say, this has a very detrimental impact on right holders. To prevent this practice from gaining even more ground, the amendment would make it an act of copyright infringement for pirated goods to be advertised online. To illustrate: Anyone selling USB flash drives containing pirated music files, or anyone giving away pirated gaming software with game console purchases would face a maximum prison sentence of two years, along with civil liability.
- Calculation of civil damages on the basis of royalties
Under the proposed amendment, plaintiffs in copyright infringement cases would be given the option of having damages calculated on the basis of royalties owed to them. Aside from alleviating the plaintiff’s burden of proof, this has the added benefit of incentivizing victims of infringement to pursue civil, instead of criminal, action.
- Abolition of mandatory minimum sentence
Under the current law, some acts of copyright infringement carry a minimum statutory sentence of six months imprisonment. This may lead to a disproportionate punishment in cases where infringement is deemed to be minor. Under the new amendment, this lower limit would be abolished, allowing courts themselves to decide the severity of a sentence on a case-by-case basis.
The amendment to the Copyright Collective Management Organization Act would create the following changes: the introduction of a public consultation mechanism; the establishment of a good governance mechanism; and the expansion of supervisory powers.
- Introduction of public consultation mechanism for CMO establishment process
The establishment of a collective management organization (CMO) can have far-reaching implications for the licensing market, affecting not only industry development but also the rights and interests of copyright users. Therefore, whenever a new CMO is in the process of being set up, the public should have the opportunity to learn about the works managed by the organization, in addition to its strategic plans for the future. That is why the latest amendment would introduce a mechanism obligating TIPO to announce whenever a new CMO is in the process of being established. This gives interested members of the public a chance to have their say by leaving comments, which can in turn help TIPO decide whether or not a CMO establishment permit should be issued.
- Term limits for management-level positions and internal controls
To ensure that a CMO can fulfill its duty of good governance, the amendment would establish term limits and disqualifying criteria for the positions of director and supervisor, thereby curbing the potential for a monopoly on power. A requirement that financial reports must contain cash flow statements would also be introduced, as would a system of internal controls. These changes are aimed at guaranteeing that collective management services are conducted in an equitable, prudent, and appropriate manner.
- Expansion of TIPO’s supervisory and guidance powers
In order to strengthen financial supervision, the new amendment would authorize TIPO to request that CMOs submit financial declarations and/or financial improvement plans within specified time frames. Moreover, TIPO would have the power to suspend or dismiss directors, supervisors, and complaint committee members who have engaged in illegal acts. The amendment also defines acceptable reasons for revoking a permit so that poorly managed CMOs can be dissolved.
