The Intellectual Property Court rendered the 106-Xing-Zhi-Shang-Su-28 Criminal Decision of December 27, 2017 (hereinafter, the “Decision”), holding that since the selling price of the second-hand tour bus only covered the vehicle per se, the transfer of the karaoke machine containing illegally reproduced songs along with the tour bus still did not constitute an offense of unauthorized reproduction due to an intent of sale or lease under the Copyright Law.
According to the facts underlying this Decision, the Accused were a tour bus operator and its legal representative. The original trial court held that the Accused had committed the offense of infringing the copyright of others by reproductive means under Article 91-1 of the Copyright Law for illegal reproduction of songs in the karaoke machine in the tour bus at issue and fined the Accused (the juristic person)NT$30,000 and sentenced the Accused (the actor)three months in prison along with an instruction on the standard for commuting imprisonment into a fine. However, the prosecutor appealed on the ground that this matter also constituted an offense of unauthorized reproduction due to an intent of sale or lease under Article 91-2 of the Copyright Law.
According to the Decision, even though the tour bus operator leased the computerized karaoke machine on the leased tour bus to the consumers on the tour bus who could choose the songs to sing, still the consumers did not obtain the free control and use of the computerized karaoke machine as a result. Therefore, the possession of the songs in the karaoke machines, which were either “originals of works” or “reproductions of works,”could not be transferred to the consumers for their possession. This is not consistent with the rental act set forth in the Copyright Law. In addition, the timing of the illegal reproduction in this case took place one year before the transfer of the tour bus. Since the time interval was too long, it could not be concluded that the Accused engaged in “unauthorized reproduction with an intent of sale.” Moreover, it could hardly be concluded that the songs contained in the karaoke machine could add resale value to the used tour bus. Since the resale price obviously only covered the vehicle per se, this still did not constitute an offense under Article 91-2 of the same law. Therefore, it was concluded that prosecutor’s appeal and the Complainant’s criticism about the inappropriateness of the original decision were both groundless. After the appeal was rejected, this matter was finalized.