The Executive Yuan passed the draft amendment of Copyright Act in October of 2017, which will be further reviewed by the Legislative Yuan. Almost as high as 80% of the articles in the Act are amended in this draft.
First of all, with the advent of digital convergence era as well as various new developments of broadcasting and transmission, the draft amendment no longer differentiates the idea of “communication” in terms of “public transmission” and “public broadcast,” by using internet or not, but rather considers whether the information is received synchronously, or asynchronously (i.e., interactive mode), to gauge if it is directed to synchronous “public broadcast” or asynchronous “public transmission. ” For example, under the draft amendment, the use of YouTube live broadcast channel would fall within the realm of public broadcast in the future, even though now it is related to internet transmission.
Moreover, under the proposed draft amendment, the playing of radio or television in public area, installing screens or amplifying devices for television or radio broadcasts in public area, and putting of computer to play online video such as YouTube videos in public area, shall fall under “retransmission to the public.” And unless otherwise provided, all authors of works shall be entitled to the right of “retransmission to the public.” On the other hand, in line with the global trend like US or Japanese laws, as well as previously local practice that “simply turning on a TV/radio is not an infringement,” any business shop such as a restaurant that simply turns on a TV or a radio (i.e. type of “public broadcast,” and excluding type of “public transmission”) and does not use equipment to expand the effect of distribution of the transmission of TV or radio programs shall be considered as fair use and not constituting infringement.
In addition, with respect to the fair use of non-profit activities, the draft expressly sets forth the different provisions for recurrent and non-recurrent activities. In case recurrent non-profit activities such as regular music performance by a troupe for charity purpose, the troupe shall be entitled to play the music after it has paid the remuneration therefor to the copyright owner. For a non-recurring non-profit activity like a film showing for an earthquake fundraising event, the organizer can assert fair use only if said film has already been released publicly for more than 3 years in order to balance the interests of both parties. Further, the draft also sets out exceptions to the public interest requirements, such as regular outdoor activities involving social assistance, public safety, public health and physical and mental health of the individual. An example of this exceptional fair use would be playing music in the park during mornings for residents’ dancing.
As for damages for copyright infringement, it is worth mentioning that the draft includes provisions for facilitating the calculation of copyright infringement damages by removing the burden of proof on the copyright holder. While the current Act stipulates that the court has the discretion to award between NTD10,000 to NTD1 million to the copyright holder, on condition that the latter fails to prove damages, the draft amendment has removed this precondition.
It is reasonable to expect that, under the draft amendment, the legitimate fair use rights of non-profit making activities would be appropriately protected and meanwhile, the right of the film companies would not be sacrificed. Finally, the alleviation of the burden of proof in relation to the calculation of compensation would allow copyright owners to obtain damages more quickly and effectively; thus, encouraging copyright owners to choose civil approach rather than a criminal liability for infringers.