On April 8, 2021, Taiwan’s Cabinet (the “Executive Yuan”) released the final draft of amendments to the Copyright Law. Compared with the initial draft proposed by the Intellectual Property Office (TIPO) in the beginning of 2020, the final draft to be further reviewed by the Congress shows a stronger determination to have the Law fit in the digital age. What follows is an overview of the main changes brought about by the final draft.
1. Redefining the “public broadcast right” and “public transmission right”
Under the current Law, public transmission right refers to the exclusive right to transmit a visual/audio work to the public through a wire or wireless network. Public broadcast right, on the other hand, is the exclusive right to transmit a visual/audio work to the public without intermediate forwarding and through non-network means (hence mainly through broadcast TV or radio). Live streaming, therefore, is categorized as an act of public transmission instead of public broadcast. Many believe such distinction is hair-splitting and counter-intuitive. In fact, few people would even care about whether a work they listen or watch is broadcast over the Internet or radio wave.
While this duo of rights still exists in the draft amendments, they will never again be distinguished by the means with which the transmission is performed. The demarcation line now shifts to whether the transmission is live and prohibits playback. If the answer is yes, like in the case of a live streaming, then the transmission constitutes public broadcast, even if the work is transmitted over the Internet. If the answer is no, namely a playback is allowed, public transmission occurs.
2. Public forwarding right
When an eatery owner plays a radio song with a speaker for the listening of customers, which exclusive right is infringed upon? This is a question that puzzles Taiwan’s IP world for years. The draft amendments now determine to solve this question once and for all. If the draft is passed as proposed, copyright holders will be accorded a new exclusive right named “public forwarding right,” as an extension of the public transmission/broadcast right. Hence, for a work that has been publicly transmitted or broadcast, to further forward it to the public with a screen, speaker or any other mechanic equipment will be subject to this new right, and the right holder’s approval will be needed.
3. More fair use exemptions
Class room exemption will be broadened under the draft amendments. First, legally established schools, for the purpose of classroom teaching, will be permitted to reproduce, adapt, and publicly distribute, perform, display and forward a published work. They will be further permitted to publicly transmit, broadcast or forward a published work to achieve distance teaching once they have adopted a reasonable technical measure (like encryption) to prevent unauthorized parties from accessing the work.
Similar advanced exceptions will be granted to libraries and archives. Under the draft amendments, these institutions will be permitted, subject to a few statutory restrictions, to provide users with online access inside the venues to digital copies of collections they create, without the need to obtain consent of the right holders. Under the current law, the right holder’s consent is required of such conduct which is considered as an act of public transmission.
Further, organizers of regular, non-profit activities may use a copyrighted work upon paying an appropriate amount of remuneration, without having to first obtain the right holder’s consent or license. Displaying music in a public open space with personal devices for nonprofit recreational or personal exercise purposes (e.g. square dancing) will become royalty-free.
4. License for use of orphan works
Following the example of other countries, Taiwan will introduce a compulsory licensing mechanism into its Copyright Law for use of “orphan woks,” namely copyrighted works whose right holders are difficult or impossible to locate or even identify. Under the design of the draft amendments, the IP Office may grant, upon request, compulsory license for use of an orphan work to an applicant-licensee which has made considerable efforts to locate/identify the right holder and seek authorization but to no avail. After posting a security bond, the applicant-licensee may further apply for a right to use the orphan work before the compulsory license is granted.
5. Preemptive strikes against online advertising
Preemptive strikes against online advertising for copyright infringement has played a pivotal role in anti-counterfeiting actions in the digital age. Realizing this, the draft amendments provide that a copyright shall be deemed to have been infringed by public dissemination of information about an infringing article through paper or physical ads, electronic or digital medias, or any other means, as long as a profit-making intention has been found in the actor. Such offense shall be liable for damages and punishable by up to two years’ imprisonment.
Interestingly, it seems that only an infringement “article” is targeted by this preemptive strike clause. Whether the Congress will consider expanding the target zone to cover infringement services and content is worth continuing attention.
6. More flexibility for claiming damages
In order to alleviate copyright holders’ burden of proof in a lawsuit against an infringer for damage compensation, reasonable royalties will be added in the list of right holders’ options of calculating damages against infringers. Further, in a lawsuit, right holders will be permitted to claim statutory damages without having to first establish (as the current law requires) that the amount of actual damages is hard to prove through other damages calculation methods.
7. Regarding criminal liabilities
The draft amendments decriminalize selling/distributing in Taiwan legitimate copies of works even if they are imported from overseas without authorization. Meanwhile, the amendments removes the minimum imprisonment term for offenses including (1) infringement on reproduction right with an intent to sell/rent and (2) infringement on distribution right in optical discs, giving the court wider discretion in determining the term of sentence.