Formosa Transnational - Taiwan
On April 13 2016 the Taiwan Intellectual Property Office (TIPO) announced draft amendments to the Copyright Law. TIPO has proposed 10 amendments to the law, as follows:
- Due to changes in technology, the definition of 'public broadcasting', 'public transmission' and 'public performance' have been revised. TIPO also simplifies the definition of 'public presentation' to make it more understandable.
- Under the existing Copyright Law, an employee and his or her employer can agree only that one of them owns the copyright in a work. In order to ensure contractual freedom, the draft amendment revises the law so that the employer and employee or the commissioning party and the commissioned party can agree to be more flexible. For example, both parties can agree that a third party will own the copyright in the work, or that both parties will share the copyright in a work.
- To promote the distribution of a work, TIPO is amending the law such that the user will be entitled to apply to TIPO for a compulsory licence for a publicly released work when it has unsuccessfully tried to obtain a licence for the work because the identity or location of the copyright owner is unknown. While TIPO examines an application for compulsory licence, the user can place in escrow a security deposit and use the work. TIPO is also adding new regulations regarding the registration of a pledge right over a copyrighted work. Under existing practice, the availability of obtaining registration of a pledge over a copyrighted work is limited to the cultural creative industry. After the amendment, pledges over all copyrighted works can be registered.
- The draft amendment deletes the protection of moral rights after the dissolution of the legal entity because no party can claim any rights on behalf of the dissolved legal entity. With respect to an MA or PhD thesis, the law has been revised from “presumed to have agreed to public release” to “regarded as agreed to public release” in order to allow the use and distribution of the work.
- The existing Copyright Law is unclear as to the regulations governing distribution, import and the doctrine of exhaustion of rights. The draft amendment clarifies the definitions of 'distribution', 'import' and the 'doctrine of international exhaustion of rights', and retains the regulation prohibiting genuine parallel importation.
- Protection of sound recording works varies between countries such that a sound recording work is protected by neighboring rights or copyright. Under the existing Copyright Law, a sound recording work is protected by copyright. The draft amendment retains this, but in an independent article. The draft amendment adds that a performer also enjoys the exclusive right to reproduce, distribute by way of transferring the title of the work or lease or publicly transmit his or her performance fixed in a sound recording or audiovisual work.
- With respect to fair use of a copyrighted work, TIPO is adding regulations for the fair use of distance learning and national library digital archives. Further, under the existing Copyright Law, other than to meet the requirements of specific fair use regulations, the courts also examine whether a particular use meets the requirement of fair use based on Article 65 of the Copyright Law. The draft amendment deletes this regulation and courts need to review only whether the use complies with the specific fair use regulations.
- Regarding damages for infringement of a copyrighted work, according to existing practice a victim must prove actual damages based on Article 88(2) of the Copyright Law. However, it is difficult for victims to calculate or prove actual damages. To deal with this problem, TIPO plans to add new regulations stipulating that a victim can choose to calculate damages based on the potential royalty, or can ask the court to decide on the amount of damages from NT$10,000 to NT$1 million based on the extent of the infringement.
- According to Taiwan’s current border regulations, Customs will suspend the release of imported or exported goods that infringe the copyright of a work based on an application from the copyright owner. To balance the interests of the copyright owner and the owner of the attached goods, TIPO is amending the law so that the party whose goods are attached can apply for cancellation of the attachment by providing a security deposit of twice the value of the attached goods or other guarantee. On the other hand, the copyright owner can apply for relevant information of the attached goods and to Customs to provide a sample of the attached goods for infringement verification after providing a security deposit.
- Some criminal regulations set out in the Copyright Law are out of date. Thus, TIPO is amending those regulations to combine and simplify the relevant regulations.
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