Newsletter
DRAFT AMENDMENTS TO COPYRIGHT LAW
To facilitate the WTO entry, the amendments to the Copyright Law which came into force in 1998 took account of the provisions of the TRIPs agreement. However, in response to the impact on the copyright system of the rapid develop-ment of high technology and digital information systems, and to bring Copyright Law in line with the WIPO Copyright Treaty and WIPO Per-formances and Phonograms Treaty, which were passed by the World Intellectual Property Or-ganization (WIPO) in December 1996, the In-tellectual Property Office (IPO) recently pub-lished further draft amendments to the Copyright Law, after repeated rounds of discussion. The draft, covering 20 articles, includes changes to 16 existing articles and the addition of 4 new articles. The main points are as follows:
Right of exclusive licensees to bring actions for infringement
Although the Supreme Court confirmed in a 1995 judgment that exclusive copyright licen-sees do have the right to bring actions for in-fringement, in practice this has remained a con-tentious issue. Hence the proposed amendment makes explicit the right of an exclusive licensee to bring an action for infringement, and provides that unless there is a specific agreement to the contrary, the owner of the economic rights in an exclusively licensed work may not enforce those rights.
New right of communication to the public, and revised definitions of public broadcast and public performance
Article 8 of the WIPO Copyright Treaty gives authors of literary and artistic works the exclu-sive right to authorize any communication to the public of their works, including the right to make their works available to the public in such a way that members of the public may gain access to these works from a place and at a time individu-ally chosen by them. Articles 10 and 14 of the WIPO Performances and Phonograms Treaty give the same right to performers and producers of phonograms in respect of their performances and phonograms. With reference to these pro-visions, a new right of "communication to the public" is proposed, defined as communication of the content of a work by wire or wireless means for the purpose of public reception, in-cluding public broadcast, interactive transmis-sion, making available for public access or other transmission.
Interactive transmission is defined as automatic transmission of the content of a work for recep-tion by members of the public in response to requests made by them at times or places chosen by them, but not including public broadcast. "Making available for public access" is defined as putting the content of a work into a form suitable for transmission prior to interactive transmission. The definition of public broadcast is amended to: communicating the content of a work to the public in the form of sound or images by wire or wireless means, for the purpose of simultaneous public reception. It further in-cludes communication to the public of the sound or images of an original broadcast by a person other than the original broadcaster, by wire or wireless means, loudspeakers or other equipment. The definition of "public performance" is amended to: communicating the content a work to members of the public present at the scene by acting, dance, singing, playing a musical in-strument or other means.
Protection of electronic copyright manage-ment information
Proposed new provisions for the protection of electronic copyright management information, drafted with reference to the WIPO Copyright Treaty and Performances and Phonograms Treaty, define the following acts as infringement of copyright: unauthorized deletion or alteration of electronic copyright management information in the knowledge that such action is detrimental to the rights of the copyright holder; and distri-bution, importation for the purpose of distribu-tion, or broadcast of an original work or copy thereof in the knowledge that copyright man-agement information attached to the work has been deleted or altered and that such distribution, importation or broadcast is detrimental to the rights of the copyright holder. Offenders will be liable to imprisonment of up to one year and a fine of up to NT$50,000.
Technical means of copyright protection
In a digital network environment, copyright holders often use technical means to prevent unauthorized reproduction or other unauthorized use of their copyright works. Any act of pro-viding means to circumvent such technical pro-tection, which although not in itself directly constituting copyright infringement nevertheless promotes or assists such infringement, should be deterred. Therefore a new provision is proposed which would make it an offence, punishable by imprisonment of up to one year and a fine of up to NT$100,000, to manufacture, import or dis-tribute equipment specifically intended for the circumvention of technical means of copyright protection, or to provide services or information specifically for the circumvention of technical means of copyright protection, with the intention of facilitating the infringement of others' copy-right.
ISPs not liable for users' copyright infringe-ment
The question of whether Internet Service Pro-viders (ISPs) should share liability for copyright infringements committed by third parties using their equipment or services is a subject of con-troversy in many countries. The proposed amendment absolves providers of electronic communications network services or facilities of liability for copyright-infringing acts of users of their services or facilities, under the following conditions:
To take account of the developing use of com-puter networks, the proposed amendment would change public broadcast in the provisions on reasonable use tocommunication to the public.
Registration of assignment or placing in trust of plate rights
Article 4 Paragraph 1 of the Trust Law provides that where economic rights required to be regis-tered are vested as a trust but the trust arrange-ment is not registered, the arrangement cannot be asserted against third parties. Article 79 of the Copyright Law, as currently worded, requires plate rights to be registered to be effective, but does not require registration of their assignment or placing in trust. To bring the law in line with Article 4 Paragraph 1 of the Trust Law, the proposed amendment would make registration of the assignment or placing in trust of plate rights mandatory.
Abolition of examination of remuneration rates set by copyright intermediary organiza-tions
Authorization of the use of copyright material, and levels of remuneration for such use, are subject to contractual arrangement between copyright intermediary organizations and users. As such, they should be determined by market mechanisms, through bilateral negotiation. To avoid misunderstandings, it is proposed to abol-ish the provision requiring examination by the Copyright Examination and Mediation Com-mittee of rates of remuneration set by copyright intermediary organizations for the use of copy-right material.
As the draft amendments stand at present, they do not address the question of protection of da-tabases of a non-creative nature. The IPO wishes to postpone a decision on introducing such pro-tection until it has considered the opinions ex-pressed at public hearings to be held on the draft.