The simple downloading of MP3 music files is an act of reproduction as defined in the Copyright Law
If a user downloads music from a Web site without authorization but does not distribute copies for sale, is the exception for "fair use" in Article 51 of the Copyright Law applicable? There are two crucial questions.
First, does Article 51 distinguish between MP3 music files uploaded on to the Web site with legal authorization and those without? In the former, does downloading the music from the Web site qualify for application of the fair use exception? I believe that if the downloading conforms with the requirements of Article 51, it may still constitute a legitimate fair use. This view has been acknowledged by most scholars and the Intellectual Property Office (智慧財產局) representatives attending the public hearing held by Legislator Su Huan-chih (蘇煥智) on April 20.
Second, does the downloading of MP3 music through telecommunication facilities of the Web site or Internet operator constitute a reproduction through the use of publicly-available machinery? Some take the view that, if that is the case, the downloading does not qualify for the fair use exception. That view, however, is self-contradictory in many ways.
First, to constitute a reproduction, the materials must be "fixed" in a "tangible" medium, and capable of being "perceived." When MP3 music is downloaded from a Web site, the music has been fixed to the downloader's terminal. Reproduction is therefore accomplished by the per-son's own machine, rather than one available for public use. Otherwise, Article 51 would also be inapplicable to the downloading of academic data in the above-described manner. According to this interpretation, virtually all of Taiwan's 6 million Internet users have violated the law. They would all be guilty of unauthorized reproduction under Article 91. How, then, can this be the way to interpret this law?
Next, if using a PC to download music is reproduction through the use of publicly-available machines because it involves the telecom facilities of a Web site and network operators, then Article 51 would also be inapplicable to the tape-recording of films shown on cable channels with household VCRs. Why? Under the same logic, the latter situation would involve the use of cable or satellite companies' facilities. Furthermore, a user of 0204 pay-per-call phone services who records phone conversations with his own equipment would be breaking the law, because he is tape-recording something transmitted through public telephone lines and facilities.
Article 51 would be virtually inapplicable in the Internet world. If the "fair use" exception is completely inapplicable in cyberspace, is it possible for any lawful acts to take place on the Internet in Taiwan?
The downloading of MP3 music definitely harms the financial interests of the copyright holders. But this is no reason to give Article 51 an overly strict interpretation. As for the economic losses of the copyright holders, we can follow the legal precedents abroad, whereby the interests of copyright holders and users are harmonized through compulsory authorization. For example, we can consider giving copyright holders the right to request remuneration from operators of reproduction facilities for reproduced material.
To say that fair use is inapplicable to an act of downloading because it involves the use of telecom facilities owned by Web site and network operators is to twist the legislative intent of the law.
Hsiao Hsiung-lin is a lawyer.
Translated by Jackie Lin and Francis Huang
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