March 2022
Jane Tsai and Yuki Chiang
The Grand Justices issued Judicial Interpretation No. 804 last year (2021) to suggest that the inclusion of “reproduction on CDs” under the Copyright Law as a cause of aggravation does not violate the principle of equality. However, legislators should also be mindful of the need to revise past legislation that is out of touch with the reality of society. In this regard, in response to the opinion of the Grand Justices and the need to promote Taiwan’s accession to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), the executive branch formulated the Partial Amendments to the Copyright Act on January 20, 2022. The draft Amendments are introduced as follows.
1. Article 100 of the Copyright Law is amended where non-digital piracies, distributions, and public transmissions that do not constitute material infringement are changed to offenses not actionable only upon complaint, and three criteria for determining material infringement are set to enhance the protection of the rights and interests of copyright holders, as specifically discussed below: “The offenses in this chapter are actionable only upon complaint, provided that this restriction shall not apply in any of the following circumstances where the copyrights holder incurs damage of at least NT$1 million due to the exploitation of the entire works “as is” which are provided with a charge: (1) the reproduction is in digital format when the offense under Article 91, Paragraph 2 is committed; (2) the reproduction distributed is in digital format when the actor intends to commit the offense of distributing a reproduction that the actor obviously knows to be copyright infringing; or (3) the offense of infringing the copyright of others by way of unauthorized public transmission is committed.”
2. In addition, to accommodate the above-mentioned amendment to Article 100, the provisions on the aggravated criminal punishment for indictable offenses under Article 91, Paragraph 3, Article 91-1, Paragraph 3, Article 98, and Article 98-1 of the Copyright Act are deleted, and the provisions on the criminal liability for offenses of general reproduction or distribution instead become applicable again, and the corresponding provisions on confiscation or forfeiture are deleted accordingly.
3. The effective date of the relevant provisions of the Amendments will be separately set by the Executive Yuan to accommodate the timeline for Taiwan’s accession to the CPTPP. (See Article 117 of the Amendments)
In the authors’ opinion, as explained in Judicial Interpretation No. 804, since it has become easier to reproduce creative works with the increasing advancement of technology, and the public is accustomed to transmitting relevant information through the Internet and the cloud, deleting “reproduction on CDs” and replacing it with “reproduction in digital format” as the cause for action ability not only upon complaint are required to keep pace with the times and accurately protect the rights and interests of copyrights holders. However, the Amendments to the Copyright Act are yet to be adopted through three legislative readings and promulgated in accommodation of the timeline of Taiwan’s accession to the CPTPP. For more information, please refer to the General Introduction of the Draft Amendments and the Provision Comparison Table at: https://www.tipo.gov.tw/tw/cp-87-901583-030dd-1.html.