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Copyright FAQs
The national government has specially enacted legislation to protect
the rights and interests of creators of works in literature,
science, the arts, and other academic area. The rights afforded by
such legislation are called "copyrights." Copyrights come into
existence as soon as a work is completed, with no special procedures
or registration required. Copyrights encompass two different kinds
of rights: moral rights and economic rights. Moral rights serve to
protect the reputation and prestige of the authors and the moral
interests of their works. Therefore, these may not be assigned or
inherited. Economic rights mainly serve to give property rights to
the creators, so that they can enjoy real economic benefits from
their work.
The term "works" in the Copyright Act includes works in literature,
science, the arts, and other intellectual realms. It includes oral
and literary works (such as poems, verses, prose, fictions, plays or
scenarios, and lectures), musical works (such as scores and lyrics),
dramatic and choreographic works (such as pantomimes, musicals,
dances), artistic works (such as paintings, comic strips (cartoons),
sculptures, craftworks), photographic works (such as photographs and
slides), pictorial and graphic works (such as maps, charts,
scientific or engineering design drawings), audiovisual works (such
as motion pictures, videocassettes, videodisks), sound recordings,
architectural works (such as architectural design drawings,
architectural models, buildings or constructions), computer
programs, and performances. Copyright protects only the expression
of a work, not the ideas, processes, operational methods, or
concepts behind a work.
The Copyright Act protects "works," meaning creations in literature,
science, the arts, or other intellectual realms. The protection
afforded by the duly obtained copyrights extends only to the
expression of a work. It does not extend to the ideas, concepts, or
principles expressed by the work. The Patent Act, on the other hand,
protects inventions and creations, and give the patent right holders
exclusive right to use them during a certain period prescribed by
law. No other person may "practice the patent" (i.e. use the
patented invention) without permission from the patent owner. The
Trademark Act, meanwhile, protects trademark rights. A trademark may
be any word, device, symbol, color, sound, three-dimensional shape,
or combination thereof that is used to identify one's goods or
services. Applications may be filed under the Trademark Act to
register a trademark and obtain protection for the right to use it
exclusively. Copyrights, trademark rights, and patent rights are
obtained in different ways. Copyright holders automatically enjoy
protection from the time a work is finished. To obtain rights of
exclusive use of a trademark or patent, however, it is necessary to
apply and successfully undergo an examination and registration
process. The periods of protection also differ. The term of
copyright protection is, in principle, the lifetime of the creator
plus 50 years and is not extendable. The term of exclusive trademark
protection is 10 years, but may be extended an unlimited number of
times, each time for a period of 10 years. The term of patent
protection is 20 years for invention patents, and in the case of
pharmaceuticals and agricultural chemicals one extension of 2 to 5
years may be granted. Utility model patents and deign patents are
protected for 10 years and 12 years, respectively, and neither may
be extended.
Article 10 of the Copyright Act provides, "The author (creator) of a
work shall enjoy copyright upon completion of the work; provided,
where this Act provides otherwise, such provisions shall govern."
That is to say, a creator enjoys copyrights as soon as he or she has
completed a work. Registration is not required. Copyrights are
private rights. Copyright owners, like owners of other private
rights in general, bear the burden of proof of the existence of
their rights. Therefore, copyright owners should preserve and keep
materials from the creative process or release of a work or other
materials relating to their rights to a work, to serve as evidence
of their rights. That way, if a dispute ever arises over the private
rights, a court of law can use such evidence submitted by the rights
owner as a basis to uphold the rights.
Taiwan became a member of the World Trade Organization (WTO) on
January 1, 2002. Under the WTO's Agreement on Trade-Related Aspects
of Intellectual Property Rights (TRIPs), member countries are
obligated to protect works of the nationals of other members.
Therefore, works of R.O.C. citizens are entitled to protection in
all other WTO member countries. However, for countries that are not
WTO member, it depends on whether that country and R.O.C. have an
arrangement for reciprocal copyright protection. If so, the works of
R.O.C. nationals enjoy protection.
Under the R.O.C. Copyright Act, copyrights obtained in accordance
with the Act protect only the expression of the copyrighted work.
The protection does not extend to the work's underlying ideas,
procedures, production processes, systems, methods of operation,
concepts, principles, or discoveries.
Copyrightable "works" includes works in literature, science, the
arts, and other academic area. Oral and literary works include
poems, verses, prose, fictions, plays or scenarios, academic theses,
lectures, and other oral and literary works. Product instruction
manuals-even those that merely contain operating procedures and
specification descriptions-fall in the category of literary works
entitled to protection as long as they have some modicum of
creativity. However, if they do not contain any modicum of
creativity, then they are not copyrightable works, and are not
entitled to copyright protection.
R.O.C. Copyright Act adopts the principle of copyright protection
upon creation. A creator enjoys copyright as soon as a work is
completed. Release or distribution of a work is not a prerequisite
for obtaining copyrights. Copyright protection may be enjoyed even
for works that have not been released or distributed.
Copyrights are divided into moral rights and economic rights.
Protection of moral rights is perpetual. Economic rights are for the
lifetime of the creator and for 50 years after his or her death.
However, economic rights in pseudonymous or anonymous works, works
authored by a juristic person (e.g. a company or foundation),
photographic and audiovisual works, sound recordings, and
performances are for 50 years from the time of public release.
Copyrights can be divided into moral rights and economic rights.
Under the R.O.C. Copyright Act, moral rights belong exclusively to,
and are inalienable from, the author. They may not be assigned or
inherited. Economic rights, on the other hand, may be assigned to
others in whole or in part, or may be owned jointly with others.
When economic rights are assigned (transferred) to others, the scope
of the assignment is as stipulated by the parties. Any rights not
clearly covered by such stipulations are presumed not having been
transferred. Therefore, it is recommended that any assignment of
economic rights be made explicitly in writing to avoid any later
disputes and to ensure that the rights are protected.
(1) Database search can be conducted at the Intellectual Property
Office for information on rights registered or recorded prior to
January 23, 1998 (for all kinds of works).
(2) Searches may also be conducted through the seven copyright
intermediary organizations in Taiwan (for musical works, sound
recordings, and audiovisual works only).
(3) Inquires can also be made based upon the information provided in
the copyright notices in or on the works themselves.
(4) The Internet also has a pool of information relating to the
work.
As a copyright owner, you are entitled to take the following steps
under civil law:
(1) You may demand removal of the infringement. If there is a
likelihood of infringement, you may demand that the infringement be
prevented. (Copyright Act, Article 84)
Using, without authorization, another person's work that is
protected by the Copyright Act may constitute infringement of the
other person's copyright, unless the use complies with the "fair
use" provisions. With certain exceptions, crimes of infringing
copyright are prosecutable only if a complaint is filed. That is,
the prosecutor may not bring an indictment unless a rights owner has
filed a complaint. The exceptions to this rule are infringements
committed by career offenders, and manufacturing pirated optical
disks for sale or for rent, or distributing pirated optical disks,
which are indictable without a complaint (i.e. are subject to public
prosecution).
The R.O.C. Copyright Act adopts the principle of protection upon
creation. That is, a creator enjoys copyrights as soon as he or she
completed a work. Registration is not a prerequisite for obtaining
copyright. The former copyright registration system was abolished in
a Copyright Act amendment promulgated on January 21, 1998, and the
government agency in charge of copyright matters has ceased
accepting copyright registrations since January 23, 1998. By the
same token, the Intellectual Property Office does not provide any
lists of songs, books, or movies that have already become public
property.
When ordinary citizens engaging in swapping audio/visual files via
software or platforms provided by software firms download the files
onto the hard drives of their personal computers without licensing
by the copyright owners or burn them, they are reproducing works of
others. If it is merely for their personal or home use, it is
considered fair use if they are downloading just a small quantity
and are not adversely affecting sales in the market for audio/visual
goods. Although such behavior does not constitute infringement of
economic rights if it remains within the scope of fair use, as soon
as it extends beyond the scope of fair use, it becomes infringement
of reproduction rights. Using software provided by software firms to
swap music not only involves the above issues of downloading
(reproducing), but also involves making copyrighted files stored on
one's own computer available for downloading by other Internet
users. This act of "making available to the public" constitutes
"public transmission" under the Copyright Act. Unless "fair use"
standards are met, it is an illegal act if done without first
obtaining consent or licensing from the copyright owner. Publicly
transmitting works of others over the Internet has far-reaching
effects and ramifications, and it can easily constitute
infringement, as the scope of permissible "fair use" is very
limited.
"Electronic rights management information" means information
concerning the rights attached to a work, such as the name of the
work, the identity of the author, who enjoys the economic rights and
who is entitled to use the work, whom others interested in using the
work should contact about obtaining licensing, and so forth. Users
("exploiters") can use electronic rights management information to
learn how they can lawfully exploit a work. Economic rights owners
can use electronic rights management information to inform others of
the status of their rights and to provide legal channels for
licensing. Electronic rights management information is labeled and
processed in electronic form for the digital environment of the
internet, so that it can be easily obtained by others and quickly
transmitted and circulated. When electronic rights management
information labeled on works by copyright owners is falsified by
others who modify or tamper with it, the consequences are
far-reaching: the rights of the copyright owner are impaired, the
order of the overall market for works is disrupted and damaged, and
users at large are left unable to obtain lawful licensing through
proper channels. To ensure normal development of markets for works
on the Internet, an amendment to the R.O.C. Copyright Act was passed
on July 9, 2003 incorporating protections for electronic rights
management information and prohibiting unauthorized modification or
deletion of such information, to be in line with international
conventions. It likewise prohibits second-hand transmission of works
whose information has been modified or deleted.
Technological protection measures are protective measures employed
by economic rights owners to prevent others from accessing or
exploiting works without authorization. Such protective measures may
take the form of equipment, devices, add-on components, encryption
technology, a serial number, a password, or some other technology
designed specially for technology protection purpose. Regardless of
the means used, any measure that can effectively prevent or restrict
others from entering and accessing works or exploiting works can be
deemed a "technological protection measure." To meet the urgent
needs of domestic digital industries in protecting digital economic
rights, and to realize Taiwan's "E-Taiwan vision" of "capitalizing
on the Internet and developing digital industries and e-businesses,"
special provisions for "technological protection measures" have been
written into the R.O.C. Copyright Act. The main thrust of these
provisions is that measures employed by copyright owners to
effectively prevent pirating of their works may not be circumvented
or disarmed without legal authorization from the rights owner.
Likewise, it is also prohibited to provide any technology,
equipment, or service for circumventing or disarming technological
protection measures without any prior authorization. In keeping with
the principle of "technological neutrality," however, the Copyright
Act also incorporates corresponding exception clauses allowing
technological protection measures to be circumvented or disarmed
where done for purposes such as: preserving national security or
public interests; procurement evaluations by central or local
government agencies, public libraries, or file archive institutions;
protecting minors; protecting personal data; performing security
testing of computers or networks; conducting encryption research; or
conducting reverse engineering. These exception clauses will prevent
technological protection measures from suppressing technological
advancements.
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