The development of digital transformation and the use of information and communication technology are progressing rapidly. The Copyright Act has become increasingly less likely to effectively address the legal conflicts arising from the various newly emerging technical applications. On April 8, 2021, the Executive Yuan, aided by research contributions from the Ministry of Economic Affairs and Taiwan IP Office, passed a draft to overhaul the Copyright Act. It is currently pending enactment by the Legislative Yuan. The key considerations of this draft are explained below.

 

Redefining public transmission and public broadcasting

 

  With the extreme convenience of Internet services and the increase in bandwidth limits, the streaming of audiovisual content has become widely available. For end consumers, the issue of differentiating broadcasting from public transmission in respect of which channel or platform they receive content from is a complicated one. For example, a radio show is played both via the radio frequency and on a company webpage. In this instance, some people only consider public broadcasting rights to be involved; in actual fact, both broadcasting and transmission rights come into play, because stereotypically, communication via a network is believed to be a practice of transmission.

 

  In order to emphasize the essential nature of disseminating “linear” or real-time content, public broadcasting will be redefined as the communication of content via wired or wireless systems or other similar means to people who “simultaneously” receive said content. For example, a talk show webcast played online will be considered a form of public broadcasting, rather than public transmission as it is now. Furthermore, the content of public broadcasting will include not only audio or video but also any digitized materials, such as text or computer programs. (§3(1)(6))

 

  Public transmission, however, will be based around the concept of “making content available to the public.” In other words, either wired or wireless, public transmission involves enabling the people to receive content at a time and place of their own choices. To make it easier to understand, public transmission particularly relates to non-linear media, with an emphasis on the interactive functions of playback, replay, and playing content at a given time and place. (§3(1)(9))

 

Creating the right of public recommunication

 

  It is a very common occurrence for the chef of a typical Taiwanese street food stand to play a list of downloaded music by a stereo set, purportedly for personal pleasure. To give another scenario, people are enjoying trying on outfits in a fashion shop with YouTube MusicTM playing. On a case-by-case basis, owners of such businesses may successfully defend themselves by arguing that the mere act of playing music in the background does not constitute a use of copyrighted work.

 

  The draft introduces the concept of public recommunication. The copyright owner has the right to re-communicate publicly broadcasted or transmitted content to other people, simultaneously or not, via screens, speakers, or other kinds of device. As a result, playing music in a business venue constitutes a commercial use of copyrighted work that requires prior permission to avoid infringement. (§3(1)(10))

 

Increasing fair use and royalty exemption

 

  The current scope of fair use is insufficient to meet the needs of the digital era. The draft law will relax some barriers to the use of copyrighted works and will broadly expand the scope of fair use.

 

  In order to improve the quality of onsite teaching, all levels of legally established schools and their teachers may, where necessary for the purpose of teaching in schools, reproduce, adapt, distribute, publicly perform, publicly present, and publicly recommunicate a published work. Furthermore, use of copyrighted work by public broadcasting, transmission, and recommunication is allowed for registered students. (§46)

 

  To encourage remote education, all levels of legally established schools, facilities and their teachers may, where necessary, publicly broadcast, publicly transmit, and publicly recommunicate a published work for non-profit and educational purposes. However, unless these activities serve students who are registered and enrolled in courses, these establishments will not be exempt from the obligation to pay a reasonable royalty fee. (§46-1)

 

  For the purpose of guiding people to find a specific work in a collection in non-profit governmental institutions, the repositories may reproduce or transmit the miniatures, abstracts, fragments, or other similar guiding extracts of that work. (§48-2)

 

  Plaza dancing is a popular pastime enjoyed by many in cities and rural areas. People dance in unison to songs and music played from a personal stereo set in cities’ squares, parks, community centers, or any convenient open spaces. With the ever-increasing popularity of this kind of recreational fitness activity, it is often arguable whether a person playing music in an open area without paying royalties or gaining prior consent from copyright owners should not be criminally liable. To address this dilemma, the draft statutorily exempts the following two types of events from the payment of royalty: (1) a non-regular activity; and (2) an activity of social relief, public safety, public health, or personal mental and physical wellbeing, which requires the use of private equipment and is carried out in streets, parks, open spaces of buildings, or other outdoor places open to the general public. (§55) The royalty exemption is limited to a revenue-free public presentation or public performances of copyrighted works.

 

Compulsory license of orphan works

 

  It is difficult or almost impossible to locate the owners of some specific works. Requiring a mutually agreed authorization from the owner before the use of them would undesirably hamper the circulation and dissemination of culture. The draft incorporates the orphan work’s compulsory licensing regulation—from the Development of the Cultural and Creative Industries Act—into the Copyright Act, to expand the scope of the application of the law to the general public. More notably, all types of orphan works can be granted a license. An applicant may, upon payment of a deposit, use an orphan work in advance of being granted a license by the TIPO. (§69-1)

 

Reducing the criminal penalty for CD copying

 

  According to the current laws in force, making just one fake CD is a criminal offence punishable by at least six (6) months in prison. Although the Supreme Court Justices ruled in their Interpretation No. 804 that the severity of the prison sentence was constitutional, the Justices nevertheless urged the legislative branch from time to time to review whether such heavy penalties for a petty crime of reproducing a copyrighted work are consistent with current social status. TIPO has noted that the balance of proportionality between a misdemeanor and the corresponding penalty has tilted. Thus, the draft will remove the minimal sentence of six month. In cases of unauthorized reproduction of a copyrighted work, sentencing will be at a judge’s discretion. (§91 and §91-1)

 

Infringement and damages calculation

 

  For early prevention of counterfeits, posting advertisements for the sale of counterfeit products will be deemed an act of infringement, for example, creating a page to sell flash drives with pre-stored unauthorized music, or including counterfeit games as a free gift with the purchase of a games console. (§87)

 

  Lastly, in addition to using the copyright owner’s loss and infringer’s gain as the basis for calculating damages, the plaintiff will have the additional option of a reasonable royalty as an alternative basis when it is difficult to retrieve evidence of the infringer’s ledgers and books. (§88)

 

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