Secondary transmission or display of work may qualify as fair use

On October 26 2017 the Executive Yuan passed a draft amendment to the Copyright Act. The amendment contains 145 articles and will be reviewed by the Legislative Yuan in 2018. Significantly, under the draft amendment, the secondary transmission or display of a work will qualify as fair use.

Before the draft amendment, the Taiwan Intellectual Property Office (TIPO) regarded the secondary transmission or display of a work as 'the action of turning on' a radio or television if the secondary transmission is not made by a cable system or other equipment which amplifies the sounds or images from the radio or television. Such action was not regarded as use of the work.

As it is common for diner owners and taxi drivers in Taiwan to turn on radios or televisions in the course of business and for customers to experience work performances or displays via such devices, TIPO defines 'the action of turning on' in order to safeguard diner owners and taxi drivers from rights infringement through secondary transmission.

However, TIPO’s definition is based on the type of equipment chosen to transmit the work, not the Copyright Act. As penalties exist for copyright infringement in Taiwan, incriminating this type of use could increase tension between public rights and rights holders. The legal community has been challenging TIPO’s definition for some time.

As a response to critics of this definition and interpretation of ‘the action of turning on’, Article 3-10 of the draft amendment explicitly states that:

• TIPO’s definition and interpretation will be abandoned; and
• secondary transmission of work means re-transmitting a public transmission of the work’s content through a monitor, amplifier or other equipment to the public.

Further, Article 66 of the draft amendment states that secondary transmissions of a public transmission of the content of a work are permitted if no direct or indirect charge is imposed on the audience to see or hear the work.

Under the draft amendment, when diner owners or taxi drivers turn on the radio or television and allow customers to receive the public transmission of a work’s content, they will not be penalised for secondary transmission without the consent of the work. Therefore, the amendment reflects the reality of secondary transmission use in Taiwan and eases the tension between public rights and rights holders.

The draft amendment is considered the most extensive revision of the Copyright Act in nearly 20 years. Under the revised act, protection for rights holders will not only increase, but will harmonise with social interests to safeguard the public’s right to use copyrighted work in order to facilitate growth domestically and raise the value of creativity.