December 2018
The provision concerning computer programs or other technologies in Article 87, Paragraph 1, Subparagraph 7 of the Copyright Law does not merely prohibit illegal transmission via peer-to-peer technologies as a type of infringement (Taiwan)
2018.10.1
Jenny Chen
The Intellectual Property Office of the Ministry of Economic Affairs issued the Zhi-Zhu-10700064350 Circular of October 1, 2018 (hereinafter, the "Circular") to communicate that the provision concerning computer programs or other technologies in Article 87, Paragraph 1, Subparagraph 7 of the Copyright Law does not merely prohibit illegal transmission via peer-to-peer technologies as a type of infringement.
Article 87, Paragraph 1, Subparagraph 7 of the Copyright Law provides: "Any of the following circumstances, except as otherwise provided under this Law, shall be deemed an infringement of copyright or plate rights:...(7)To provide to the public computer programs or other technology that can be used to publicly transmit or reproduce works, with the intent to allow the public to infringe copyrights, by means of public transmission or reproduction by means of the Internet, of the works of another, without the consent of or a license from the copyrights holder, and to receive benefit therefrom."
According to this Circular, this subparagraph regulates providers of computer programs or technologies, who are deemed infringing copyrights and liable for the infringement only when their acts meet the following circumstances at the same time: (1) they willfully provide works for illegal download or transmission through the Internet without the permission or a license from the copyright holders; (2) they engage in acts of providing computer programs or technologies; and (3) they extract economic benefits from the above acts. In addition, although the "computer programs or other technology that can be used to publicly transmit or reproduce works" include many kinds of neutral network technologies or services, still this subparagraph seeks to penalize those who provide computer programs or technologies with an "intent" to allow users to infringe copyrights and profit from such infringing acts.
It was further pointed out in this Circular that the legislative explanation concerning the addition of Article 87, Paragraph 1, Subparagraph 7 of the Copyright Law as mentioned above is excerpted as "...3. Basically when a technology provider meets relevant criteria, legal liabilities are imposed on the provider for user’s copyright infringement by usage of such technology. With respect to the addition of Subparagraph 7 and Paragraph 2 to this article, explanation is provided as follows: (1) Since this Subparagraph imposes legal liabilities on technology providers, the acts penalized by this article are the 'providing act'...(omitted) ...; (2) The technology provider should have an intention to provide such technology to others to infringe the copyrights of others..." Therefore, the provision concerning "computer programs or other technology that can be used to publicly transmit or reproduce works" under Article 87, Paragraph 1, Subparagraph 7 of the Copyright Law, according to the above legislative explanation, is not limited to illegal transmission via peer-to-peer technologies as a type of infringement. This is also evidenced by the same opinion adopted in legal precedents (compare the 101-Zhi-Su-25 Decision of the New Taipei District Court of Taiwan). Therefore, the scope of this subparagraph is not limited to peer-to-peer technologies.
Jenny Chen
The Intellectual Property Office of the Ministry of Economic Affairs issued the Zhi-Zhu-10700064350 Circular of October 1, 2018 (hereinafter, the "Circular") to communicate that the provision concerning computer programs or other technologies in Article 87, Paragraph 1, Subparagraph 7 of the Copyright Law does not merely prohibit illegal transmission via peer-to-peer technologies as a type of infringement.
Article 87, Paragraph 1, Subparagraph 7 of the Copyright Law provides: "Any of the following circumstances, except as otherwise provided under this Law, shall be deemed an infringement of copyright or plate rights:...(7)To provide to the public computer programs or other technology that can be used to publicly transmit or reproduce works, with the intent to allow the public to infringe copyrights, by means of public transmission or reproduction by means of the Internet, of the works of another, without the consent of or a license from the copyrights holder, and to receive benefit therefrom."
According to this Circular, this subparagraph regulates providers of computer programs or technologies, who are deemed infringing copyrights and liable for the infringement only when their acts meet the following circumstances at the same time: (1) they willfully provide works for illegal download or transmission through the Internet without the permission or a license from the copyright holders; (2) they engage in acts of providing computer programs or technologies; and (3) they extract economic benefits from the above acts. In addition, although the "computer programs or other technology that can be used to publicly transmit or reproduce works" include many kinds of neutral network technologies or services, still this subparagraph seeks to penalize those who provide computer programs or technologies with an "intent" to allow users to infringe copyrights and profit from such infringing acts.
It was further pointed out in this Circular that the legislative explanation concerning the addition of Article 87, Paragraph 1, Subparagraph 7 of the Copyright Law as mentioned above is excerpted as "...3. Basically when a technology provider meets relevant criteria, legal liabilities are imposed on the provider for user’s copyright infringement by usage of such technology. With respect to the addition of Subparagraph 7 and Paragraph 2 to this article, explanation is provided as follows: (1) Since this Subparagraph imposes legal liabilities on technology providers, the acts penalized by this article are the 'providing act'...(omitted) ...; (2) The technology provider should have an intention to provide such technology to others to infringe the copyrights of others..." Therefore, the provision concerning "computer programs or other technology that can be used to publicly transmit or reproduce works" under Article 87, Paragraph 1, Subparagraph 7 of the Copyright Law, according to the above legislative explanation, is not limited to illegal transmission via peer-to-peer technologies as a type of infringement. This is also evidenced by the same opinion adopted in legal precedents (compare the 101-Zhi-Su-25 Decision of the New Taipei District Court of Taiwan). Therefore, the scope of this subparagraph is not limited to peer-to-peer technologies.
