. /.WORLD TRADE
ORGANIZATIONIP/C/W/362/Add.3
8 January 2003
(03-0070)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Follow-up Questions by Japan
Addendum
By means of a communication from the Permanent Mission of Japan, dated 14 November
2002, the Secretariat has received a copy of the following follow-up questions that Japan has
communicated to the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.
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THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU,
KINMEN AND MATSU
Question 1 is based on the response dated 20 September 2002, (page 7 of document
IP/C/W/373/Add.1).  Questions 2-4 are based on the response dated 16 September 2002, (pages 5-7 of
document IP/C/W/373/Add.1.
A. COPYRIGHT
1. Concerning Response 1, please explain why two-years grace period stipulated in Article
106ter of the Copyright Law is consistent with Article 18.3 of the Berne Convention.  Furthermore,
please provide us detailed explanation what behaviour is regarded as “exploitation”.  Considering thatthere seems to be no right of distribution in the Copyright Law, please explain whether selling or
distributing works would be regarded as “exploitation” under the Copyright Law, and please give us
explanation how long these acts would legitimately continue, especially, even after 2 year-moratorium
has expired.
2. Concerning Response 2, it refers to the rental right of authors of cinematographic works
(Article 29) and the exhaustion of the right (Article 60).  Because so-called video-rental in rerum
natura  inevitably consist by lending copies of cinematographic works, it is understood that the authors
cannot enjoy their rental right virtually with regard to  video-rental (Article 60).  Regarding this point,
Response 2 states that Chinese Taipei meets Impairment Test stipulated in Article 11 of the TRIPS
Agreement because video-rental has not “led to widespread copying of such works which ismaterially impairing the exclusive right of reduction” conferred on authors and their successors in
title.  Please give us detailed explanation why such explanation can be made, even without the
information regarding the number of video-rental shops.IP/C/W/362/Add.3
Page 2
3. Concerning Response 4 which states “[a]lthoug h broadcasting organizations are not directly
protected under the Copyright Law, any programs broadcast by those organizations are protected as
long as such programs satisfy the definition of works as provided for in Paragraph 1, Article 5 of thesame law”, such explanation seems to refer to the last sentence of Article 14.3 of the TRIPS
Agreement.  However, because the exclusive right of authorizing public broadcasting under Article 24
of the Copyright Law is not granted to the case that a performance is publicly broadcasted “after suchperformance has been reproduced or publicly broadcasted”, it is understood that the authors of the
program (a work) broadcast are not granted the right of rebroadcasting.  As a result, isn’t it concluded
that such provision violates the last sentence of Article 14.3 of the TRIPS Agreement and Article11bis (1) (ii) of the Berne Convention?  Even if it is not regarded to violate these treaties, is the fair
compensation paid for the right holder?  Article 11 bis (2) of the Berne Convention stipulates that the
conditions which are determined by the countries of the Union as matter for legislation “shall not inany circumstances be prejudicial to the” author’s “right to obtain equitable remuneration which, in the
absence of agreement, shall be fixed by competent authority”.  Furthermore, if a government limits or
excepts the exclusive right provided in Article 11 bis (1) of the Convention, it should establish due
procedure, such as fixing the level of compensation to right holders or setting up tribunal to arbitrate
between broadcasting organizations and right ho lders over the payment of remuneration.  Please
explain how Article 11 bis (2) of the Berne Convention is implemented.
4. Concerning Response 8, regarding the last sentence of Article 26 of the Copyright Law, an
exclusive right is not granted to the case that “public performances by means of loudspeakers or other
equipment after the performance has been reproduced or publicly broadcast”.  On the other hand,
Article 11(1)(i) of the Berne Convention stipulates that authors shall enjoy the exclusive right ofauthorizing the public performance of their works, “including such public performance by any means
or process”, including public performance by sound or visual recordings.  Please explain the reason
why the last sentence of Article 26 of the Copyright Law is consistent with Article 11(i) of the BerneConvention.
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