Proposed Amendment to Taiwan's Copyright Act

November 22, 2017

A proposal to amend the Copyright Act was adopted by the Executive Yuan on October 26, 2017.  Premier Lai expressed that the digital technology and the development of the computer network has led to this major overhaul of the Act in over 7 years of study and consultation.  It aims to promote the protection of authors by impeding infringement, as well as to harmonize public interests and stimulate creativity.  The Premier hopes that this bill will soon be passed into law by the legislature.  The major features of this proposed amendment include the following:-

1.     The right of public recitation will merge with public performance because it is more and more difficult to distinguish public recitation of literary work from public performance.  In addition to public transmission and public broadcast, public retransmission is added, which is to retransmit by video, amplifier and/or other devices to the public concurrently at the time of receipt of public transmission and/or public broadcast. Public retransmission may sometimes overlap with public presentation thus public presentation is modified to exclude public retransmission.

2.     Allow more flexibility in the context of a work created by an employee or an independent contractor; the proposed amendment will allow the contracting parties more freedom to dictate how they will fashion ownership of the economic rights of a work, where sharing may now be possible. A new provision to ensure that in the case of an audio-visual work or sound recordings is that when the persons employed to complete the work will be designated as the author, the person who pays and hires will own the economic rights of the work absent express contract provisions to the contrary.

3.     Unlike a natural person, the moral rights of a legal entity will no longer protected after the legal entity is extinguished. In the case of a natural person, protection of moral rights will continue after the author passed away; however, public release of a work whose author has deceased would not be considered a violation of his moral rights unless the author had indicated that he or she would want to release such work.

4.     The proposed amendment clarifies the definition of distribution, which is limited to actual delivery of the original work or authorized copies thereof, as well as the principle of exhaustion as it applies to original work or authorized copies when the owner distributes them by ways of a transfer of ownership.

5.     There are certain adjustments to the Act to make the performances and sound recordings clearer. Also, performers will be entitled to numerated forms of copyrights depending on whether the performance has been fixed or not.

6.     Certain fair use provisions are added for the needs of libraries and distant education, etc.

7.     Compulsory licensing is added in the case of being unable to locate the author after a reasonable effort; also there is a new provision for the copyright authority to administer a system to record the pledge of economic rights of copyrights.

8.     In the case of a copyright violation, the proposed amendment will allow the owner of copyright to elect damage to be assessed based on licensing fee or for the court to determine a suitable amount of compensation from NT10,000 to NT$1,000,000.

9.     In the case of Customs seized goods, the proposed amendment will allow the party whose goods were subjected to Customs seizure to pay twice the amount of the bond deposited by the complainant, to lift the order of the seizure.  It will further allow the rights owner to pay a bond to Customs to gain access to the goods in question for an investigation into whether there is an infringement.

10    There are certain adjustment to the criminal sanctions for certain offenses under the Act.