Jane Tsai and Jiselle Ong
To accommodate the rapid development of digital technologies and the Internet, the Executive Yuan adopted the draft Partial Amendments to the Copyright Act on April 8, 2021 and submitted them to the Legislative Yuan on April 12 for deliberation. Adding 9 new articles, revising 37 articles, and deleting 3 articles, these Amendments signify the largest adjustment scale in the past 20 years. The General Introduction of the draft Amendments specifically pointed out that these Amendments seek to adjust the regulation of the current Copyright Act to accommodate the repaid development of digital technologies and the Internet. Such adjustments include the revision of the definition of public broadcast and public transmission to accommodate the application of Information Technology, the revision of the provision on enjoyment of the economic rights to meet the freedom of contract and industry requirements, the revision of the provision on moral rights to promote the circulation and exploitation of works, and for the accommodation to the requirements of the Internet and the Digital Era, the modification to limitations on economic rights, as separately discussed below:
I. Revised definition of public broadcast and public transmission to accommodate the application of Information Technology
Under current law, the broadcast of the same contents via the Internet is regarded as “public transmission,” while such broadcast via a Television station is deemed “public broadcast.” That different rights are derived from the simultaneous broadcast of the same contents causes confusion. In this draft, the “public broadcast” under Subparagraph 6 of Paragraph 1 of Article 3 is changed into “wired, wireless broadcast or any other similar method” for inclusion in internet broadcasting. Meanwhile, the wording “simultaneous” is added to emphasize real-time and linear acts. The “public transmission” under Subparagraph 9 stresses that the two criteria – “time and location” – should be satisfied (including live webcasting that allows real-time viewing and review and replay at any time). To wit, the two rights are specifically differentiated by the freedom of the subscribers to choose the viewing time and location. Therefore, since the subscribers can choose the time and location for receiving works, the delivery of an electronic newspaper is also deemed a “public transmission.”
II. Revised provisions on enjoyment of the economic rights to meet the freedom of contract and industry requirements
To meet the principle of freedom of contract so that the parties can enter into an agreement with more flexibility, the Amendments adjust the enjoyment options of the economic rights under Article 11 (“works completed within the scope of employment”) and Article 12 (“works completed by commissioned persons”). For works completed within the scope of employment (works completed by an employee on the job), not only is it is possible to agree that the entire economic rights should belong to the employer or the employee but also to apply the provision that “a contract that provides otherwise shall govern.” To wit, both parties may agree to share parts of the rights or to cause a third party to enjoy the rights. For a commissioned work, the commissioning party may agree with the commissioned party that the commissioning party should be the author (the commissioned party shall be the author in the absence of a special agreement); and under the circumstances that the “commissioned party is the author,” the enjoyment of economic rights is subject to the same requirements for works completed by an employee on the job, and a flexible agreement may be made. In addition, for works completed before these Amendments, the original enjoyment of rights is maintained and not affected by the Amendments.
III. Revision of the provisions on moral rights to promote the circulation and exploitation of works
Since a performance is often staged after the work is publicly released, public release is a non-issue for it. Therefore, Article 15 as amended excludes the “public release right” of the performer. In addition, the wording of the legal provision is changed so that only “works not publicly released” come with a public release right. Article 27 is also amended this time so that an author only has the “public display right” to her/his artistic or photographic works that are “not publicly released” (if an author’s artistic or photographic works have been posted on the Internet, the author is not permitted to assert that s/he still has the “public display right”).
IV. Revision of the provisions on economic rights limitations to accommodate the requirements for the Internet and the Digital Era
These Amendments expand the scope of exploitation, exploiter and the type of economic rights that may be exploited. More important revised provisions include Article 55, under which publicly released works may be publicly presented or publicly performed in non-profit activities if compensation for use have been payed (such as the playback of music to accompany a charity performance or the playback of music between classes at a school); and if the above-mentioned act is engaged by “using personal private equipment …to conduct an activity….to promote personal mental and physical health… in an open space” (e.g., a citizen’s use of a home CD player to playback music to accompany a fitness exercise in a park) or if a publicly broadcast work of another person is publicly retransmitted (such as the broadcast of a live ball game of a television station in a plaza), there is no need to pay a compensation, however no public broadcast is allowed in both cases to avoid excessive infringement upon the rights of the economic rights holder. Such important revised provisions also include Article 55-1, which provides that “typical home reception equipment” may also be used to publicly retransmit the publicly broadcast works of others without paying any compensation (such as the playback of television programs by a snack bar or beauty salon), provided that this does not include publicly transmitted works.
The following provisions on fair uses such as “distant learning,” “digital archives of national library,” “guiding purposes for archival institutions,” etc., are added this time:
1. Article 46, which provides that a school may exploit works that have been publicly released for “public broadcast, public transmission or public retransmission” to people with a student status and have selected the course (e.g., for remote classes or for students provided with teaching videos who can view the videos at their selected time); and Article 46-1, which provides that non-profit curriculum platforms and educational institutions may claim statutory licensing and may exploit the works of others in their curricula “after paying an appropriate compensation for the exploitation,” but a license is still required under profit-seeking circumstances.
2. Article 48, which provides that in case of unavailability through reasonable market channels, an archival institution may “reproduce or distribute” works in its collections to avoid damage or losses of them in future; and a national library may, for the sake of cultural preservation, reproduce “materials that shall be deposited pursuant to law” and “materials provided to the public on the Internet by government agencies”; and under certain circumstances, an archival institution may provide such reproduced works in its premises for browsing.
3. Article 48-2, which provides that a non-profit archival institution may, within the scope of necessity, provide “appropriate thumbnail images” (for example, artistic and photographic works provided in a reduced format and with a low resolution), “abstracts” (such as abstracted literary works), or a “small number of segments” (the practical requirement for a small number of segments of reproduced music, recordings or audiovisual works is around 15 seconds) of works as a guide to the public for browsing on the Internet, and this is not limited to the works in the collection of the institution per se. However, no provision may be made to the public for download or for other exploitation, but if the term of copyright protection has expired, anyone may exploit the works freely.
The Amendments also revised the criteria for economic rights limitation by deleting the wording “within a reasonable scope” so that a number of legal provisions do not need to be reviewed in accordance with the current Paragraph 2 of Article 65 and may be exploited if the contents of the respective provisions are met.
These draft Amendments accommodate the digital technology development and market needs, adjust the definitions of several types of copyrights, revise the provisions on the enjoyment of economic rights, modify the provisions on moral rights and relax exploitation restrictions. In addition to the revision of the above-mentioned four aspects, portions of recording-related rights, compulsory licensing, pledges, damages, and criminal liabilities are also modified so that the law can better meet the requirements of our time and become more flexible for application by the people.