With the nation feeling the pressure of being listed on the US Special 301 Priority Watch List, intellectual property rights (IPR) have become a hotly debated topic. In particular, with respect to whether non-habitual and random copyright infringements should be subjected to mandatory prosecution, the Ministry of Justice and Executive Yuan have divergent views. \nThe ministry feels that, with the exception of habitual copyright infringers, copyright infringements should be prosecuted only upon complaint filed by the injured parties. Under pressure from the US, however, the Executive Yuan feels that all forms of copyright infringements should be subjected to mandatory prosecution. This is a serious issue worthy of discussion. \nFirst and foremost, from the standpoint of copyright theory, the ultimate legislative intent of copyright law is to promote cultural development. Protecting the copyrights of authors is only a means to that end, rather than an end itself. So, where a piece of work has already been widely disseminated and used by many without opposition from the author, interference by the government's police power will only hinder cultural development. Moreover, it would not only contradict the author's free will, but also obstruct the goals of the copyright law. \nNext, in terms of the legislative policy, most continental-law countries make copyright infringement a crime prosecuted only upon the filing of complaints. For example, both in Japan and South Korea, the copyright law explicitly includes such provisions. Just as in Taiwan, German law imposes mandatory prosecution for habitual copyright infringers, but not the non-habitual infringers. As one can plainly see, prosecuting copyright infringement based on complaint is a uniform practice in continental-law countries. \nAbout 10 years ago, the US was in more of a trade deficit with Taiwan, not to mention that the pressure of the Super 301 list was even greater, yet Taiwan still declined -- at least seven times -- US demands to make copyright infringement subject to mandatory prosecution. The pressure for trade retaliation now cannot be any greater than it was 10 years ago. So why is the government so easily caving into US demands? \nOn the law enforcement side, the existing copyright law already imposes mandatory prosecution against habitual infringers. So long as the government enforces the law effectively, it ought to be sufficient to curb the practice of malicious copyright infringement. As for the average random copyright infringement cases, nine out 10 involve individuals who lack understanding about what constitutes copyright infringement. Placing these cases under mandatory prosecution really does little to the crack down on copyright infringement. Instead, it will only increase the number of unnecessary litigations. Innocent and average individuals will also be implicated unnecessarily. \nTake the downloading of MP3 files for example. If the number of files downloaded is de minimis, the general understanding is that no copyright infringement has occurred. However, how does one determine how much constitute a de minimis number? A small number of judges and prosecutors went as far as believing that copyright is infringed when one song is downloaded. \nThere are simply too many such issues that are disputed even within the legal circle. If copyright infringement is suddenly made a crime subjected to mandatory prosecution, how can the people not feel worried? Moreover, many disputes continue to exist with respect to the criteria of "fair use" both from the standpoint of theories and application. Once copyright infringement is made a crime subjected to mandatory prosecution, members of academic circles will likely report copyright infringements by those belonging to different academic factions, even where they are not the injured parties. The prosecutor would then have the investigate the case no matter what. Not only will the academic field become chaotic, but no good is done for cultural development of the country. Is this consistent with the legislative intent of the copyright law? \nThe piracy of copyrighted works is a global problem. Even in places such as the US, Canada and the EU, infringements frequently occur. Taiwan must end piracy because it needs to for its own long-term development, not just to escape the pressure of trade retaliation from the US. This pressure arises because of enforcement problems in Taiwan, rather than legal enactment problems. However, to escape revenge, we often make perfunctory legal amendment. As a result, the law becomes increasingly strict -- and twisted -- even as the pressure of trade retaliation continues to heat up. Whether copyright infringement should be made a law subjected to mandatory prosecution is a legal and professional question. Lawmakers and the government cannot ignore it. \nHsiao Hsiung-lin is a lawyer in Taipei.
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