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COPYRIGHT INFRINGEMENTS IN PRC PUNISHABLE UNDER ROC LAW
It has long been a controversial issue whether violations of the Copyright Act or other intel-lectual property legislation can be punished un-der ROC law if they are committed in Mainland China. Those who take the negative view opine that although, Mainland China continues to be part of ROC territory by law, in fact Mainland China has its own legal system, and the ROC sovereignty does not extend to the Mainland China; therefore, the validity of the intellectual property rights conferred by the ROC IP legisla-tion cannot extend to Mainland China. Those who take the positive view maintain that as Mainland China is legally part of ROC territory, despite the practical difficulties that currently prevent the ROC from exercising its sovereignty there, crimes committed there are nonetheless subject to penalties under ROC law.
The Supreme Court, in a 2001, noted that the relevant provisions of the Constitution, the Ad-ditional Provisions of the Constitution, and the Act Governing Relations between the Peoples of the Taiwan Area and the Mainland Area, clearly indicate that the Mainland China remains part of ROC territory, and the ROC has not relinquished its sovereignty there. The court therefore held that although practical difficulties currently prevent the ROC from exercising its sovereignty over the Mainland China, crimes committed there are nonetheless subject to penalties under ROC law. The Ministry of Justice expressed the same view in a legal interpretation issued on 16 July 2003, that where a work protected under the ROC Copyright Act was reproduced in Mainland China and sold only there, the perpetrators were still liable to penalties under the ROC Copyright Act.
Despite of the opinions of the Supreme Court and the Ministry of Justice, it remains to be seem whether it is possible in practice for copyright, trademark, or patent infringements, or other IPR infringements, to be prosecuted and penalized under the relevant penal provisions of the ROC Copyright Act, Trademark Act, Patent Act, or other IPR legislation.