26 April 2021
Playing music in Taiwan’s parks will no longer constitute an infringement of the Copyright Act, after seven major amendments were passed at a Cabinet meeting on April 8, 2021.
The amendments mean that people will be able to play music on devices at parks without worrying about copyright infringement. It is the biggest change in the law for two decades.
“There have not been many lawsuits against people playing music in parks actually,” says Wendy Chu, a senior associate at Eiger in Taipei. “The proposed amendment is just to avoid possible disputes in the future.”
The Cabinet passed the draft amendments to articles in both the Copyright Act and Copyright Collective Management Organization Act. The new-look laws will be sent to the Legislative Yuan for deliberation.
“It is a long process to pass a draft of bill, though!” Chu says. “The procedure includes one to three reads and if this cannot be passed by 2024 by the legislature, it will need to be proposed again by the Executive Yuan.”
A Ministry of Economic Affairs statement said the amendments would redefine the scope of “public broadcasting” and “public transmission.”
Second, they would add the right of rebroadcasting or retransmission.
Third, they would allow more fair use of cultural inheritance to promote cultural assets and make them more accessible to the public.
Fourth, there would be a compulsory licensing requirement added for unknown owners of copyrighted works.
“The amendments this time give more room for the fair use exemption, which upsets the copyright owners but meanwhile, gives the rights of rebroadcasting or retransmission which comfort copyright owners,” says Chu.
Finally, advertising online of pirated products will be deemed an infringement, according to the new law.
Yet, the amendment requires “knowledge” of the advertiser to constitute infringement. “Normally, the advertiser (together with the seller) needs to show the minimum effort it took to believe that the product is not counterfeit,” Chu says. “We will need to see how the courts handle this in the future.”
“People selling counterfeits always say that they ‘didn’t know’ the products were counterfeit, and the courts have typically looked at other factors like the price of the fakes versus real goods, and so on,” says John Eastwood, a partner at Eiger. “Many counterfeit sellers have difficulty if they have no documentation for their purchases from a legitimate distribution source - I got it from a guy named A-bao who sells them from the back of a truck.”
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