Mon, Apr 08, 2002 page8

• Policing intellectual property rights

  • By Su Nan-huan 蘇南桓
  • • 
    • 
    • 

  Under pressure from the US for rampant CD piracy and the possibility of Taiwan again being included on the "special 301 watch list," the Ministry of Economic Affairs reportedly plans to amend the Copyright Law (著作權法) to impose heavier punishments on violators. The ministry is also considering making non-profit copyright infringements subject to public prosecution. As a law-enforcement official with judicial experience spanning more than a decade, I am strongly opposed to the proposed changes.

  The Copyright Law takes into account the intent of violators and the damage caused by the crime. It stipulates that law-enforcement bodies may prosecute copyright violators only when the infringements involve profit-making behavior. However, non-profit acts -- such as students photocopying foreign-language books and the downloading of files onto personal computers -- are to be pursued only when the victims bring a complaint against the perpetrators -- as in the prosecutors' search of National Cheng Kung University dormitories for downloaded MP3 music files last year.

  Once the legislature passes the ministry's proposal, students' photocopying of foreign-language books, the downloading of music, or reproduction of music files will become subject to indictment and conviction in court. The heaviest criminal penalty would be a jail term of five years. This must be handled with care since it will cause commotion on campuses and in homes.

  Countries agree on the need to protect intellectual property rights (IPR). Stressing their protection is part of the necessary upbringing for people in democracies. But since human nature is not entirely good, IPR violations, such as copyright violations, will always exist. But criminal penalties are not the only method to deter such violations. Civil-code indemnifications are also an appropriate and effective legal sanction.

  IPR violations that occur without the intent to profit are relatively less damaging and are normally committed by individuals. Since such violations are often committed in schools or homes, they are more difficult to control. Civil law should be able to provide sufficient punishment. There is no need to impose criminal responsibility. On the contrary, decriminalizing such non-money-making behavior is a matter of urgency.

  Unfortunately, the threat of being placed on the "special 301 watch list" has forced both the legislature and the Cabinet to grant unreasonable concessions. Newspapers report that officials have admitted that IPR violations without profit-making intent will become a matter of public prosecution. This goes further than IPR protection in other countries. The officials also admit that Taiwan's protection of IPR fully complies with WTO regulations and other international trade agreements related to IPR -- even with the International Intellectual Property Alliance's rules.

  Why, when faced with pressure from US business, does Taiwan so anxiously investigate and negotiate amendments to the Copyright Law and implement severe punishment according to standards stricter than international rules or those in the US? Don't they know that for every violator you catch, there will be 10 others on the loose? Don't they know that punishment can sometimes be useless?

  Apart from strengthening education on IPR, imposing strict self-discipline on all levels of schools and meting out severe punishments to students who violate school regulations on IPR, prosecutors and police should work together to launch investigations into major commercial violators.

  Following the model of recent vote-buying investigations, the police should be given the respon-sibility for arresting criminal groups violating IPR in their districts as part of improving their performance records. Officers with outstanding results should be rewarded and promoted. Those officers who are less successful should be reprimanded. This is the only way to lay an all-covering net for criminal activities.

  Special prosecutors should be appointed to handle IPR viola-tions. These special prosecutors should cooperate with the anti-piracy group under the ministry, specialized police units and organizations working for the protection of IPR, such as the International Federation of the Phonographic Industry. The prosecutors should also direct police investigations to pursue criminal groups responsible for manufacturing and sales activities, rather than filling their performance quotas by simply arresting students selling pirated products on behalf of crime syndicates.

  They should also make greater efforts to confiscate manufacturing equipment and ill-gotten profits, thus reducing the likelihood of repeat offences. These prose-cutors should ask courts for heavy sentences and forced labor for habitual and repeat criminals or organized crime groups.

  This is the only way that Premier Yu Shyi-kun will be able to follow through on his proclamation that this is a year for protecting intellectual property rights.

  Su Nan-huan is a prosecutor at the Kaohsiung branch of the Taiwan High Court.

  Translated by Jackie Lin and Perry Svensson
• Most Popular

  • 1

    Dell picks AMD for business PCs

  • 2

    Ministry lifts overseas limits on TSMC

  • 3

    New missiles to be deployed in north

  • 4

    Retired officers indicted over collusion

  • 5

    Buffet defies suspension order after illness reports