Impending amendments set to rewrite Taiwan’s copyright regime

As reported previously in IAM international report ("Copyright Act to be revised"), the Executive Yuan Council approved a draft amendment to the Copyright Act on 26 October 2017. However, as the draft was not reviewed by the Legislative Yuan, the Executive Yuan has now revised it and resubmitted it. Although the draft was not passed last year, it remains important because it is very likely to be approved in the near future, as a result of Taiwan’s efforts to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) as soon as possible.

Given that platforms such as YouTube have rapidly developed in recent years, the definitions of ‘public broadcast’ and ‘public transmission’ under current law are confusing and troublesome. Therefore, the draft has revised the definitions of both concepts, distinguishing between them according to whether the programme is linear. If the content is broadcast in a linear manner (ie, the audience may only consume the content according to the broadcaster’s schedule), then it is publicly transmitted regardless of the communication technology used.

The draft also revised the definition of ‘public re-transmission’ regarding additional broadcast content that is publicly broadcast or publicly transmitted on a screen or with a loudspeaker in a public place. A retailer playing YouTube music in its store, for example, is an act of public re-transmission. The draft stipulated that a copyright owner, in principle, has the exclusive right of public re-transmission.

To clarify the range of fair use for educational establishments and libraries, the latest draft amendment revised the provisions on fair use exemption to accommodate the development of the Internet and to strike a balance between the interests of the public and the copyright owner. To facilitate online courses, for example, the draft amendment explicitly allows a school to publicly broadcast, publicly transmit or publicly re-transmit a protected work to its students.

This draft incorporates provisions of mandatory authorisation for work of unknown copyright owners (so-called ‘orphan works’). It also enables applicants seeking authorisation for such a work to exploit it while the competent authority is still reviewing the application, provided that they have paid a deposit.

The draft amendment also provides more flexibility for agreements involving economic rights. Under the draft amendment, if a work is completed by an employee or a commissioned person, besides designating the economic rights to either the employee, the employer, the commissioned person or the commissioning person, the parties may also agree to each enjoy part of the rights or designate them to a third party.

It is believed that the Legislative Yuan may schedule the process of reviewing the draft in the near future. All creators, investors, rights owners, users and industries should therefore prepare to welcome the long-awaited transformation of the Copyright Act.