UPDATE ON HK COMPANY'S COPYRIGHT IN THAI WORKS

03/01/2000

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Our November 1999 issue reported a judgment of the Taipei District Court, that the copyright in previously published musical works of Thai na-tionals, which had been assigned to a Hong Kong company, was protected under the ROC Copy-right Law. However, after an appeal by the de-fendant, the High Court recently overturned the district court judgment, and acquitted the de-fendant. The reasons stated were as follows:

Under Article 4 of the Copyright Law, protection of the work of a foreign national depends on the nationality of the author. If a copyright holder entitled to such protection assigns property rights in a work to a national of a country with which the ROC has no reciprocal copyright relationship, the work continues to enjoy protection. But if a national of a country with which the ROC has no reciprocal copyright relationship assigns prop-erty rights in a work to a national of a country with which the ROC does have such a relation-ship, then since the author's country does not have such a relationship with the ROC, and based on the legal principle that an assignee cannot acquire greater rights than the assignor, the assignee does not enjoy protection under the Copyright Law.

Since Thailand does not have a reciprocal copy-right relationship with the ROC, the work of a Thai national cannot receive protection under the Copyright Law. Further, inquiries through the ROC Ministry of Foreign Affairs confirmed that Thailand does not afford protection to works of ROC nationals first published in Thailand, or published in Thailand within 30 days after first publication in other countries or regions. Therefore, the work of a Thai national is not protected under the Copyright Law. At present, works of Thai nationals may only receive pro-tection under the Copyright Law if they fall into any of the following categories defined by the Agreement for the Protection of Copyright be-tween the Coordination Council for North American Affairs and the American Institute in Taiwan:

works first published in the USA, or published in the USA within 30 days after first publica-tion outside USA;

works first published within the territory of a party to the Berne Convention or the Univer-sal copy right convention, in which exclusive rights have been acquired, within one year of first publication, by written agreement be-tween persons as stated below, and which have been publicly disseminated in the ROC or the USA:

1.US or ROC nationals;

2.juristic persons in which US or ROC na-tionals hold shares or other exclusive in-terests totaling 50% or more;

3.juristic persons directly controlled by US or ROC nationals; and

4.juristic persons controlled by branch of-fices or subsidiaries of US or ROC juris-tic persons;

works of US residents; and

works of ROC residents.

Under Article 36 of the Statute Governing Rela-tions with Hong Kong and Macao, the following works of Hong Kong juristic persons are entitled to copyright protection in the ROC:

works completed on or after 1 August 1990; and

works not published prior to 1 August 1990.

The three songs at issue in this case were com-posed, distributed and assigned by nationals of Thailand, a country which has no reciprocal copyright relationship with the ROC. Although property rights in the works at issue were as-signed to a juristic person of Hong Kong, a ter-ritory which does have such a relationship with the ROC, the works still do not meet the condi-tions defined by the Agreement for the Protec-tion of Copyright between the CCNAA and AIT. Therefore, the actions of the defendant in re-recording the three songs for sale on CDs and tapes cannot be held to constitute infringement of copyright.

* Now the Taipei Economic and Cultural Rep-resentative Office in the United States (TECRO).