Taiwan and the US are set to hold negotiations next month on a free trade agreement, once again attracting public attention to the long-running tensions between the two countries over intellectual property rights (IPR) protection issues.
In the past, the US used the power of the Special 301 provisions to pressure the Taiwan government during IPR talks. After more than a decade of effort, Taiwan's IPR-related legislation is already quite close to international standards, but the US continues to list IPR as a major issue in the talks. To handle the matter effectively, Taiwan should first clearly understand the nature of the problem.
History
It should be made vividly clear that international IPR protection has a history of more than 100 years, dating back to the Berne Convention. Consensus has long existed on the content and norms of international IPR protection. However, since Taiwan has long been excluded from the international community and did not gain access to the WTO until this year, people in Taiwan can easily harbor some kind of nationalistic sentiment, due to an inadequate understanding of the protection of foreigners' intellectual property rights. This has led to irrational protests about "ruining our rights and humiliating the country" or "unequal treaties."
People can even be blind to the basic norms of the international community. Looking at the "anti-anti-piracy" movement of May this year, up to the "anti-US imperialist" calls from student organizations this time, one does not see a clear understanding of copyright rights and obligations. It should be noted that the protection of rights in the international community is normally based on reciprocity.
Taiwan should bravely assume the obligations of a member of the international community. Only then can Taiwan has its own rights protected. Besides, given the thriving development of Taiwan's own high-tech and cultural industries, strengthening IPR protection does not merely benefit the US. Taiwan should consider whether it can achieve the objective of protecting its own local industries and public benefits.
Terms
Whether the US recommendations for legislative amendments are reasonable or not should be an issue on which Taiwan's representatives should seek advantageous terms on a rational basis at the negotiation table. In fact, Taiwan's Intellectual Property Office has long invited experts and scholars to complete draft amendments to the Copyright Law in accordance with international conventions. The draft amendments will soon be sent to the Legislative Yuan for review. The issues covered by the draft amendments are far wider in scope than the US recommendations.
Moreover, the draft amendments have adequately, based on legal rationale and international norms, dealt with the most important three issues among those proposed by the US: ie, the extension of the period of copyright protection to 70 years; including temporary reproduction within the scope of copyright protection; and to subject all copyright infringements to public prosecution (ie allowing prosecution for such cases even if the copyright holders do not file any complaints.)
As for the period of copyright protection, the Berne Convention and the Trade-Related Intellectual Property Rights (TRIPS) treaty set the term at 50 years after the author's death. Taiwan should be able to firmly stand by this international standard. The issue of temporary reproduction is not specified in international conventions, but US, Japan, EU and even some scholars and practitioners in Taiwan tend to consider temporary reproduction to be a type of reproduction under the Copyright Law. Clearly stipulating such in the Copyright Law should cause no major impact.
However, reproduction does not necessarily constitute infringement. Copyright laws also contain the principles of "fair use" and "implied license" that make for exemption from liability. The key is for the legislation and judicial decisions to clearly define the scope of fair use so that users may not be faulted at every turn.
Prosecution
The US demands that copyright infringements be subjected to public prosecution is based on the the belief that severe punishment combined with mandatory prosecution will effectively deter piracy. But this idea is not correct. Whether copyright infringements should be subjected to public prosecution is a matter of a nation's criminal legislation policy.
Currently some countries adopt public prosecution for copyright infringements, while others require complaints from copyright holders. That does not necessarily have to do with whether investigations and enforcement will be effective. Rather, it involves resource allocation in the judiciary and enforcement systems as well as the question of evidence for rights verification.
For example, Malaysia's anti-piracy action has produced excellent results in recent years, but copyright infringement prosecutions in the country still require complaints from copyright holders. Therefore, the focus should be taken back to whether the Taiwan government has the determination to crack down on piracy and enforce the laws effectively.
According to Taiwan's current copyright laws, only vocational infringers and those who infringe on the moral rights of deceased authors are subject to public prosecution. Criminal punishments are stipulated for other types of infringements, but prosecution requires complaints from copyright holders in those cases. This is compatible with international rules. The problem rests in the fact that the prosecution process for IPR infringements in Taiwan is currently lagging and the enforcement is still seriously weak. This has even affected the rights claims of domestic high-tech businesses.
Taiwan's government should indeed make improvements in this regard. Only solid results can serve as bargaining chips in negotiations with the US.
Grace Shao is a practicing lawyer and associate professor at the Institute of Technology Law, National Chiao Tung University.
Translated by Francis Huang
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