October 2023
Jane Tsai and Lilian Hsu
The proliferation of illegal set-top boxes and similar devices has fueled rampant piracy of audiovisual works worldwide. In April 2023, the Office of the United States Trade Representative released the Special 301 Report, pointing out the severe issue of piracy of audiovisual content in certain regions, which include Taiwan,[1] through illegal streaming devices and illegal Internet Protocol Television (IPTV) distribution. In response, Mei-Hua Wang, Minister of the Ministry of Economic Affairs, remarked that the Executive Yuan’s Office of Trade Negotiations would invite various government agencies to get together, understand the situation, and propose improvement measures.[2]
To address the issue of set-top boxes, Taiwan added in 2019 Article 87, Paragraph 1, Subparagraph 8 of the Copyright Act, which specifically provides that manufacturing, importing, or selling set-top boxes not technologically neutral shall be deemed a copyright infringement.[3] The legislative reasons clearly state that “set-top boxes that are not pre-installed or pre-linked with, or do not provide guidance for users to install computer programs that can link to illegal audiovisual content are excluded from the scope of this subparagraph due to technological neutrality.” In response to this new legal requirement mentioned above, some set-top box providers have switched to offering “pure” set-top boxes, and stopped helping consumers install “Illegal Apps” (referring to applications that can connect to illegal audiovisual content) on set-top boxes.
However, it remains uncertain whether these practices are sufficient to exempt set-top box sellers from the regulation of the Copyright Act. Specifically, some set-top boxes currently only feature an icon button that can connect to illegal audiovisual content. However, in a new device state, this button does not possess the actual functionalities of an Illegal App. It is not until consumers download and install specific apps that they can access programs by clicking the icon button. Furthermore, some set-top box sellers only provide overseas customer service contact information but do not personally guide consumers to install the above-mentioned apps. Are these situations considered as set-top boxes with pre-installed programs, pre-linked programs, or guidance for consumers to install computer programs that can connect to illegal audiovisual content? Currently, courts have no clear legal consensus on this issue.
Some court judgments held that if set-top boxes sold by sellers require users to download and install illegal apps themselves in order to access unauthorized program content, and the sellers do not offer users service guidance for installing illegal apps, then the sellers’ actions do not fall within the scope of Article 87, Paragraph 1, Subparagraph 8 of the Copyright Act (the 110-Min-Zhu-Su-121 Civil Decision of the Intellectual Property and Commercial Court).
In addition, some court judgments held that even for the sale of “pure” set-top boxes, if sellers are aware that other parties provide customer service assistance to users in installing illegal apps but still sell such set-top boxes, their actions constitute the sale of equipment or devices containing illegal apps, thus violating Article 87, Paragraph 1, Subparagraph 8:(3) of the Copyright Act (the 110-Min-Zhu-Su-81 Civil Decision of the Intellectual Property and Commercial Court).
In summary, although the Copyright Act does not regard the sale of technologically neutral set-top boxes as a copyright infringement, the concept of “technological neutrality” is still somewhat ambiguous. Courts still have not formed clear and stable opinions for gray area cases on determining if a set-top box is “pre-installed” with illegal apps or whether operators “guide, assist, or predefine paths” for users to use illegal apps. Therefore, out of respect for the copyrights of others and considering the relevant legal risks, businesses operating in the field of set-top boxes are advised to obtain necessary licenses from copyright holders.
[1] The Office of United States Trade Representative, the Special 301 Report of 2023, https://ustr.gov/sites/default/files/2023-04/2023%20Special%20301%20Report.pdf (last reviewed on October 4, 2023).
[2] Tse-chieh Huang, Hsin-lung Chen, and Cheng-lin Hsieh, US Accused Taiwan of Rampant Illegal IPTV; Mei-hua Wang: Interministerial Clarification, April 27, 2023, Public Television System: https://news.pts.org.tw/article/634270 (last reviewed on October 4, 2023).
[3] New legal knowledge article published by Lee, Tsai & Partners and titled: Is the sale and manufacture of “Ubox clean version” which doesn’t contain any infringing apps, against the law? (Taiwan)
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