Newsletter
COPYRIGHT ACT AMENDED
The amendments to the Copyright Act were promulgated on 1 September 2004 and took ef-fect from 3 September 2004. The main points of the amendments are as follows:
Copy control protection measures are defined as equipment, devices, components, tech-nologies, or other technological means em-ployed by a copyright holder to effectively prohibit or limit unauthorized access to or use of a work by other persons.
New provisions state that: (1) copy control protection measures adopted by a copyright holder shall not be defeated, destroyed, or otherwise circumvented without lawful au-thorization; and (2) equipment, devices, components, technologies, or information for defeating, destroying, or otherwise circum-venting copy control protection measures shall not be manufactured, imported, or supplied to the public for their use, or provided to the public as a service, without lawful authoriza-tion.
The above provisions do not apply if such ac-tions are undertaken:
1.To maintain national security;
2.By a central or local government agency;
3.By a file archiving institution, educational institution, or library open to the public, in order to assess whether data has been ac-quired;
4.To protect minors;
5.To protect personal data;
6.To perform security testing of computers or networks;
7.For the purposes of encryption research;
8.For the purposes of reverse engineering; or
9.In other circumstances defined by the com-petent authority.
In Article 22 Paragraph 3 of the old Act, which defined exceptions to the exclusive right of reproduction in the case of temporary repro-duction, the wording ''use of a lawful work'' is amended to "lawful use of a work,'' and ''net-work relay transmission'' is amended to ''law-ful network relay transmission.''
Article 26 Paragraph 4 of the old Act provided: ''If a recorded work as referred to in the pre-ceding paragraph reproduces a performance, the author and the performer of the recorded work shall jointly claim payment of compen-sation for use. Where one of these parties makes such claim first, it shall distribute a share of the remuneration to the other.'' On the basis that performers can agree on the sharing of profits with record companies contractually, this paragraph is deleted.
Article 82 Paragraph 2 of the old Act required that when mediation by the Copyright Ex-amination and Mediation Committee of the Intellectual Property Office failed to resolve a dispute between a copyright intermediary or-ganization and a user, the dispute should be submitted to arbitration. This provision is deleted, so such matters is now left up to the discretion of the parties concerned.
The use of a work in such a way as to injure its author's reputation should be regarded as in-fringement of copyright or plate right and subject to criminal penalties.
New provisions empower the Customs to suspend the customs clearance and release of goods that are suspected of copyright in-fringement. If the appearance of imported goods or of goods destined for export is such as to clearly arouse the suspicion that they in-fringe copyright, the Customs may instruct the right holder to assist in verification within a limited period (within four hours from re-ceiving notification in the case of export by air, and within one business day in the case of import by air and import or export by sea). If within three business days after the Customs suspends the release of goods, the right holder does not apply to the Customs for the goods' seizure, or institute civil or criminal proceed-ings to protect its rights, then the Customs should release the goods, unless they contra-vene other customs clearance regulations.
The distinction between infringements for profit and those not for profit is abolished, and so are the penalties under the old Act for in-fringements not for profit. This amendment is intended to clarify the law and avoid doubts as to its application.
The minimum penalty for unauthorized copying of optical discs for the purpose of sale or rental, and for the sale of illegally copied optical discs, is increased from detention to not less than six months' imprisonment.
The amended Act also provides that repro-ducing a copyrighted work for personal ref-erence, or within the bounds of fair use, does not constitute copyright infringement.
Article 93 of the old Act decriminalizes in-fringements of Article 87 Subparagraph 4, which prohibits parallel imports. However, the true purpose of the ban on parallel imports is to prevent subsequent rental or sale. Ac-cordingly, Articles 91-1 and 92 of the old Act impose criminal penalties on the rental or sale of illegally imported items. The amended Article 91-1 Paragraph 3 makes the importa-tion of optical discs in violation of Article 87 Paragraph 4 prosecutable if the rights holder files a complaint.
Article 87 Subparagraph 5 of the old Act pro-vided that a person who made business use of a copy of a work of computer software with the knowledge that the copy infringed the economic rights in the work, should be deemed to have infringed copyright. This is now amended to read that any business use of an infringing copy of computer software will be deemed to infringe copyright.
In addition, the legislature attached a resolu-tion to the amended Act, requiring that to as-sist rights holders and users, by 31 December 2004 the Intellectual Property Office must complete guidelines defining fair use for the purposes of photocopying in libraries, photo-copying for educational use, and distance education by educational institutions.