According to the Taiwan Copyright Act, copyrightable works are protected upon completion in Taiwan. Registration, publication or marking is not required. Therefore, if an author does not identify his/her name and contact information on his/her work, it would be difficult for a person intending to use the author’s work to contact the author to obtain a license.
To address the above issue and enable potential users to utilize “orphan works” whose authors are unknown or cannot be located, the TIPO added a compulsory license provision in a draft Amendment to the Copyright Act published on April 3, 2014.
Pursuant to the new provision, if a potential user intending to use a published work cannot obtain a license for the work because the author is unknown or unavailable even after exercising due diligence in locating the author, the potential user may apply with the TIPO for a compulsory license to use the work. Furthermore, since the author is not known or available for royalty negotiation, the TIPO will determine the amount of royalty. The potential user, having deposited the royalty, is permitted to use the work within the scope of a license issued by the TIPO.
In addition, to ensure the timeliness of using orphan works, the new provision allows a potential user to use an orphan work during examination of the compulsory license application by depositing a security determined by the TIPO. If the license is subsequently granted and the royalty determined by the TIPO exceeds the amount of the security, the potential user shall deposit the balance. If the license is refused, the potential user shall immediately stop use of the work, and the TIPO shall determine the royalty for the period of use by the potential user and refund any balance of the security to the potential user.
If the Amendment to the Copyright Act is passed, it will help the exploitation of orphan works in Taiwan.