A draft amendment to the Copyright Law proposed by 18 Legislators with the aim of combating setup boxes related infringements was passed on April 16, 2019.
As the IP Office’s press release issued on the same day commented, the content industry is severely harmed due to unlicensed setup boxes or apps that facilitate users to access infringing audio/visual content by offering them easy-to-navigate interfaces that assemble illegal sources of copyrighted content gathered on the Internet.
In a bid to curb the parasitic economy growing around these setup boxes and apps, a new Article 87(1)(8) is now introduced to the Copyright Law, which reads:
“One who intends to facilitate the public to access publicly broadcast or transmitted contents that infringe on copyrights, and knowingly (a) offers the public a software that collects IP addresses of the said infringing contents, (b) instructs or assists the public to use, or presets path for the public to access the said software, or (c) manufactures, imports, or sells an equipment or device containing the said software, shall be deemed as infringing copyrights, suppose he or she receives benefits from such conduct” (the writer’s translation).
The infringer may be punishable by an imprisonment up to two years and/or a fine up to NT$500,000, pursuant to Article 93 which was also amended.
In its news release, the IP Office provided some explanatory notes on the interpretation and application of the new Article 87(1)(8), including:
The typical scenario for sub-clause (a) is someone places an app on a website or platform (like App Store) and allows the public to download the app which provides links to infringing visual content. Interestingly, to ensure the public perfectly understand what such apps are, the IP Office added in the news release that these apps are commonly called as “wonder kit for binge-watching (zhui jü shen qi).”
For example, if one presets a path in a setup box for the box users to access an open source site where a wonder-kit app is stored and open for downloading by the public, then he or she will be caught by sub-clause (b).
The conduct described by sub-clause (c) includes, for example, selling a setup box with a built-in wonder-kit app, or selling a setup box which contains a preset path to a website where a wonder-kit app is downloadable.
It is worthy to note that sub-clause (c) does not explicitly state that one who rents (instead of selling) an infringing setup box shall also be deemed as a copyright infringer. This loophole, if there is one, might need to be eventually mended by the court.
Another point worth following up is whether a conduct which occurs outside of Taiwan can be caught by sub-clause (a); for example, the “wonder-kit” app is placed on a foreign website by a foreign entity and only the Taiwan user’s downloading of the app in Taiwan creates a link between the conduct and Taiwan. While it is hard to predict the answer, the Taiwan IP Court’s decision rendered in the end of 2018 for Hsu v. Village Vanguard may give us some insight. This decision held that, to determine whether jurisdiction over a foreign defendant resides with a Taiwan court, the court should follow the general theory of jurisdiction in international law, taking into consideration all relevant factors including whether the foreign defendant could have reasonably anticipated that Taiwan is one of its major markets or fields of activity. Hsu v. Village Vanguard, 107 Min-Zhu-Kang 1 (IP Court 2018).
The above contents are intended as general discussion of the subject matter only and shall not be deemed as legal advice to any particular case or issue.