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DRAFT LAW TO PROTECT ABORIGINAL INTELLECTUAL PROPERTY
Cathy C. W. Ting
To give protection to the traditional intellectual creations of Taiwan's indigenous peoples, many of which have been passed down orally from generation to generation without being recorded in writing, the Council of Indigenous Peoples (CIP) recently approved the text of a draft Law for the Protection of Intellectual Creations of Indigenous Peoples. The draft comprises 21 ar-ticles with the following main points:
The competent authority is the CIP; only in-tellectual creations recognized by and regis-tered with the authority will qualify for pro-tection.
"Intellectual creation" means the expression of customary folk skills and other cultural achievements of the indigenous peoples, such as traditional religious rites, music, dance, songs, sculpture, weaving, images, or cos-tume.
From the date of registration of an intellectual creation, the applicant acquires the exclusive right to its use.
A qualified applicant may be the representa-tive of a specific people, tribal settlement or family. If no qualified applicant can be iden-tified, the right to apply is deemed to belong to all the indigenous peoples, and the competent authority will act as their representative.
The competent authority may establish a committee for the review of intellectual crea-tions of indigenous peoples to examine and review intellectual creations, establish a reg-ister of intellectual creations, and announce entries in it.
The exclusive right of use of an intellectual creation means the intellectual property rights and moral rights in the creation conferred by its recognition and registration.
The exclusive right of use of an intellectual creation may not be made the subject of as-signment, pledge, or compulsory enforcement.
The holder of the exclusive right of use of an intellectual creation may not renounce that right without the consent of the competent authority.
The exclusive right of use of an intellectual creation is protected in perpetuity. If the holder of the exclusive right of use of an in-tellectual creation ceases to exist, protection of the exclusive right of use shall be deemed to continue. Benefits deriving from the exclu-sive right of use shall then accrue to the Na-tional Indigenous Peoples' Cultural Devel-opment Fund.
Other persons may not use a registered intel-lectual creation without authorization. Per-sons who contravene this provision will be liable for damages up to NT$1 million.
A previously published intellectual creation may be used in good faith and in a reasonable manner to the extent necessary for the pur-poses of news reporting, commenting, not-for-profit education, research, not-for-profit purposes, or other legitimate purposes, if the source of the work is attrib-uted.
The principle of reciprocity applies to the protection of intellectual creations of foreign nationals.
