Taiwan’s Executive Yuan recently approved a bill proposed by the Taiwan Intellectual Property Office (TIPO) to amend Taiwan’s copyright law. The amendments aim to support Taiwan’s request to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).
Section 18.77(6)(g) of the CPTPP requires member states to enact laws providing that intentional copyright infringement on a commercial scale is an offense that the state may prosecute without complaint from a copyright owner. rights. Article 100 of Taiwan’s Copyright Law, however, states that copyright infringement is generally indictable only upon complaint by the right holder, with specific exceptions relating to infringements. involving optical discs. Nevertheless, footnote 135 to Chapter 18 of the CPTPP provides Member States with the flexibility to meet their practical needs by allowing Member States to limit the application of this Article 18.77(6)(g) to intentional acts. infringement that affect the commercial exploitation of the copyright holder. work.
To meet the CPTPP’s requirement that copyright infringement must be indictable without complaint, the TIPO has proposed the following elements for an indictable copyright infringement:
- Reproduction or transfer of a paid work in its original form (i.e. reproducing or transferring the work without altering it) which
- Causes the rights holder to suffer damages of at least NTD 1 million (approximately USD 34,000).
The TIPO claims to have based these criteria on the provisions of Japanese copyright law adopted to meet the requirements of the CPTTT. It should be noted, however, that Article 123 II of the Japanese Copyright Act leaves it up to the courts to determine whether the infringement has “significantly affected commercial use” rather than setting a fixed threshold. and rigid.
In our view, the 1 million NTD threshold proposed in the current bill will likely be questioned and challenged when the Legislative Yuan of Taiwan takes up the bill, because TIPO’s reasoning for the 1 million NTD threshold simply refers to certain articles of the Civil Procedure Law of Taiwan. without explaining the relevance of these items to commercial-scale copyright infringement.
While further amendments to the Executive Yuan bill during the legislative process are entirely possible, the Taiwanese government’s determination to adhere to the CPTPP means that it is highly likely that Taiwanese copyright law will eventually be amended in a manner appropriate to the requirements of the CPTPP under Chapter 18.
Debate regarding certain copyright infringements as criminal acts
The bill would also remove the proviso from Section 100 of the Copyright Act that made copying optical discs a criminal offence. TIPO’s reasoning is that the proviso is obsolete given the rise of online digital piracy.
The enactment of the Section 100 provision was heavily influenced by the U.S. Special 301 Report in the 2000s. At the time, there was debate in Taiwan about whether it was constitutional to make ‘a specific type of copyright infringement (CD copying) a criminal act. In May 2021, however, the Constitutional Court of Taiwan, in its judicial interpretation of Yuan No. 804, held that making certain types of copyright infringement incriminable was constitutional. This interpretation underlies the current amendment to Article 100 proposed by the TIPO. In Interpretation Reasoning No. 804, the Court noted that the political justification of the legislative record for making copying of optical discs a criminal act was that copyright infringement involving the copying of CDs was a problem. severe and persistent. in the 2000s that warranted increased penalties to deter copyright infringement. This was an important public policy objective to deter said copyright infringement. The Court therefore concluded that making the copyright infringement offense in question indictable without complaint was reasonably related to this objective and therefore constitutional.