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The IPO recently held seminar to discuss whether, based on the following factors, there is a need to adjust the penal provisions of the Copyright Law, including the severity of the penalties and the principle of prosecuting cases only on complaint.
International copyright agreements merely require countries to apply effective criminal penalties to assure the protection of copyright holders' rights. The specific measures and their content are left to the domestic law of each country. In other words, what type of criminal sanctions are envisaged to deter copyright infringement, how severe the pen-alties are, and whether prosecutions are brought only if a complaint is filed or without the need for a complaint to be filed, are all matters to be determined by the legislative policies of individual countries.
Under the Copyright Law as currently in force, copyright infringement cases are generally prosecutable only on complaint. The maxi-mum penalties for infringement are prison terms of six months to five years, plus optional fines up to NT$300,000. However, habitual and professional offenders can be prosecuted without a complaint being filed, and are liable to imprisonment for 1 to 7 years plus optional fines up to NT$450,000.
Effective deterrence of copyright infringement depends not only on the statutory penalties, but also on copyright holders' active assertion of their rights, vigorous detection and inves-tigation by law enforcement agencies, and investigation of facts and appropriate sen-tencing by the courts. Copyright holders would all like criminal penalties to be in-creased, and even all infringements to be prosecuted without the need for a complaint to be filed. But copyright is, after all, in the na-ture of a private-law right, and as such must be actively asserted by the copyright holder in order to receive protection. Also, the level of criminal penalties imposed requires due con-sideration, to prevent disproportionate pun-ishments being applied compared with those for other criminal acts.
In recent years the Judicial Yuan and the Ministry of Justice (MOJ) have repeatedly suggested that IPR infringements be de-criminalized. At present, it remains a matter of dispute among various groups whether the criminal penalties currently imposed by the Copyright Law are appropriate. With regard to the rule that cases are prosecutable only on complaint, the MOJ reiterated that while prosecution is conditional upon a complaint being filed, investigation is not. Public prosecutors may take the initiative to investi-gate any case of copyright infringement, re-gardless of whether it meets the criteria for professional or habitual criminality, and such investigation does not preclude victims from filing complaints.
Although the copyright laws of various coun-tries provide for criminal penalties for in-fringement, most make cases prosecutable only on complaint. Furthermore, in most countries civil litigation is the means for re-solving disputes over copyright infringement. However, copyright holders in Taiwan tend in practice to use criminal prosecutions as a means to obtaining civil damages. This is a point in which the situation in Taiwan differs from other territories at present.
At the seminar, experts, academics, prosecutors, police and judges put forward differing views, and no conclusions were reached. We will con-tinue to report on any further developments.
