Yulan Kuo

Yulan Kuo

Charlene Yeh

Charlene Yeh

On October 26 2017 the Executive Yuan passed a draft amendment to the Copyright Act. The draft amendment was proposed and drafted by the Taiwan Intellectual Property Office (TIPO), passed to the Executive Yuan for review and modification, and has been sent to the Legislative Yuan for inspection and formal amendment through three successive readings.

Although there have been several amendments in the past, the Copyright Act has not been substantially revised in nearly 20 years. In view of technological developments in digital convergence and as the Internet is constantly innovating, the Copyright Act must keep pace with those changes to reflect current circumstances. There are a total of 145 articles in the draft amendment, which is expected to change 80% of the current provisions, and thus constitutes a major revision with 93 articles to be revised, 17 articles to be added and four articles to be removed. 

This report summarises highlights of the amendment.

Adjustment of definitions of ‘public broadcast’ and ‘public transmission’, and addition of the right of communication to the public
TV programmes can be transmitted not only through traditional broadcasting on air, but also via digital convergence. Therefore, it is difficult to recognise the difference between public broadcast and public transmission. This situation has blurred the boundaries of rights and has led to unfavourable circumstances in connection with copyright licensing.

The draft amendment provides clear definitions for public broadcast and public transmission. According to the amendment, ‘simultaneous’ transmission will fall under the scope of public broadcast and ‘interactive’ transmission will be categorised as a public transmission.

Further, to strengthen protection for copyright owners, the draft amendment adds a right of communication to the public. For example, if a business plays a YouTube video on the Internet via a screen at a business area, the business must first obtain consent or authorisation from the copyright holder of the video.

Adjustment of protection for performers
Referring to international trends, the draft amendment adds provisions granting rights to protect actors and performers who perform in DVDs to enjoy the same rights as singers who record songs on CDs.

Amendments of restrictions on economic rights
The Copyright Act seeks to protect the rights and interests of authors while reconciling social and public interests. Therefore, to make fair use of copyright works applicable to the general populace, the following additions are included in the draft amendment:

  • Fair use provisions for distance education, which is becoming more widespread.
  • Libraries may create and maintain digital archives as a fair use to reflect modern reading habits.
  • Copyrighted works may be used in regular non-profit activities by paying the appropriate remuneration without the advance consent or authorisation from copyright holders.

To meet the needs of the general populace, it is not necessary to obtain consent or authorisation, or pay remunerations for playing musical works during daily health activities, such as dancing in the park.

Compulsory licensing for copyright works of rights holders who are positively indeterminate or who cannot be contacted (orphan works)
In order to facilitate the use of copyright works, the draft amendment adds a compulsory licensing provision for orphan works. When a party intends to use an orphan work, the party can apply to TIPO for compulsory licensing. Users will be allowed to furnish deposits to obtain advance use of or access to orphan works.

Amendment of inappropriate criminal sanctions
Under the existing provisions, some forms of punishment are considered inappropriate for the offence of copyright infringement. Therefore, the draft amendment removes the minimum six-month imprisonment as a punishment.

Comment
The aforementioned amendments have been drafted in response to issues raised in today’s digital era with the goal of constructing a better copyright legal regime. Further, finalisation of the Copyright Act amendment will create a legal regime for the Asian Silicon Valley Development Agency, which was established in December 2016 and is supervised by the Executive Yuan's National Development Council. TIPO will actively promote the draft amendment at the Legislative Yuan to enhance Taiwan’s cultural and creative development.

For further information please contact:

Yulan Kuo
Formosa Transnational
www.taiwanlaw.com
Email: yulan.kuo@taiwanlaw.com
Tel: +886 2 2755 7366