WORLD TRADE
ORGANIZATIONIP/C/W/373/Add.2
11 November 2002
(02-6173)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English
REVIEW OF LEGISLATION
Responses from Chinese Taipei to follow-up questions posed by the United States
Addendum
By means of a communication from the Permanent Mission of the Separate Customs Territory
of Taiwan, Penghu, Kinmen and Matsu, dated 22 October 2002, the Secretariat has received copies of
the following responses to the follow-up questions  posed by the United States, as circulated in
document IP/C/W/379/Add.1.
_______________
CHINESE TAIPEI
1. Please explain further how paragraph 1, Article 5 of the present Copyright Law, which
reads "1. Oral and literary works" provides protection of performances of works other than
"pre-existing" works, as noted in your response  to USG Question 2(b).  Does your law, for
example, protect a live musical performance where the subject-matter of the performance is not
based on a pre-existing work?
Under paragraph 1, Article 5 of the Copyright La w, live musical performance is not protected
in subparagraph 1 ("oral and literary works") but, instead, protected either under subparagraph 2
("musical works") or subparagraph 3 ("dramatic and choreographic works").
2. Paragraph 2, Article 22 of the Copyright Law provides performers with the exclusive
right to reproduce fixations of their performances, but does not appear to directly provide
performers with the exclusive right to contro l unauthorized fixations of their performances.
How does your Government provide perform ers with the exclusive right to control
unauthorized fixations of their performances?
Fixation during the course of a performance or broadcast is within the definition of
reproduction in accordance with subparagraph 5, paragraph 1, Article 3 of the Copyright Law.
Therefore, unauthorized fixation of the performance or broadcast is an infringement to performers'
exclusive rights of reproduction under Article 22 of the same Law.
Please refer to the Administration Order that specifically addresses that issue in details.  (See
Attachment G of our reply to your original question 2(c)).
3. In your response to USG Question2(e), your G overnment states that the term "within a
reasonable scope" in Article 51 of the Copyrigh t Law is further defined by Article 65 of theIP/C/W/373/Add.2
Page 2
Copyright Law.  Please provide the source of authority that clarifies the connection between
these two provisions.
The connection between Articles 51 and 65 is stipulated under Paragraph 2, Article 65 of the
same Law which reads:  "In determining whether the exploitation of a work complies with the
provision of Articles 44 to 63, or with other conditions of fair use, all circumstances shall be take intoaccount, in particular the following facts shall be noted as the criteria for determination."
4. Please provide the most recent version of the draft amendments to the Copyright Law.
Please provide a copy of the explanatory notes supplementing the draft amendments to the
Copyright Law (i.e. those which explicitly state that temporary copies are to be treated as
reproductions).  Please also provide the sour ce of authority which indicates that those
explanatory notes shall be used as guidelines bi nding authority by courts and/or administrative
agencies.
The latest version of the draft amendment to the Copyright Law, including its Explanatory
Note, is available in Chinese and posted on the website of the Intellectual Property Office
(www.moeaipo.gov.tw).
The Explanatory Note, which is an integral part of the draft amendment to the Copyright Law.
After enactment, it would serve as an important reference to identify the legislative intention when
courts are to make decisions on individual cases.
Amendments are now under consideration to codify the above-mentioned interpretation.
After the insertion of "temporary reproduction" specific provisions dealing with its fair use would also
be stipulated.
5. We would appreciate receiving information on the scope of responsibility of the Joint
Optical Disk Enforcement Task Force.  For instance,  is it the responsibility of the Joint Optical
Disk Enforcement Task Force to inspect all optical disk plants in Chinese Taipei?
To deal with copyright piracy particularly in the production of infringing optical disks, a Joint
Optical Disk Enforcement Task Force (JODE) was established on 3 September 2002.  JODE
comprises of police force and officers from four relevant agencies of the Ministry of Economic
Affairs.  While setting up of the JODE, an action plan has also been with the scope of responsibility as
follows:
1. to collect relevant information and investigate possible infringement;
2. to comply with the Optical Disk Law, the inspections are to be carried out on legal
optical disk manufacturing plants and to raid on illegal ones on regular and irregular
basis;
3. to collect and analyse the enforcement statistics;
4. to review the result of enforcement as a basis for improving the direction of future
enforcement;
6. Please clarify, if a defendant ought reasonably to have known that an act or copy is
infringing, will he be subject to liability under Article 87(2) of Chinese Taipei’s copyright Law?
Yes.  In accordance with subparagraph 2, Article 87 of the Copyright Law, liability exists
upon infringement with or without the actual knowledge of the defendant.IP/C/W/373/Add.2
Page 3
7. If the infringing use of a computer program is not for direct profit and not on a
commercial scale, what remedies does the Copy right Law provide to the rightholder in the
programme?
The use of an illegal computer program, as long as it is not for direct profit, does not
constitute copyright infringement.
When the use is for direct profit and with the knowledge that it is an illegal reproduction of a
computer program, such action constitute an "infringing use" and is liable under subparagraph 5,
Article 87 of the Copyright Law.
8. With respect to your response to USG Questions 2(f), what types of utilization may be
made by the user under Article 106 of the Copyright Law (i.e., distribution right, reproduction
right)?  Does Article 106 allow a user to conti nue to reproduce a work, for instance, within this
2-year transition grace period or only sell off pre-existing copies?
All types of utilizations activities, inclusive of reproduction, recitation, broadcast, public
presentation, public performance, compilation, adaptation and leasing specific works, as stipulatedunder Articles 22 to 26, 28 and 29 of the Copyright Law, are exempted from copyright infringement
for a period of two years under Article 106 ter of the Copyright Law, as long as those utilization
activities are confined within the scope necessary to  carry out the project as originally planed for by
the exploiters and investors.
Article 106 ter is enacted in accordance with Article 18 of the Berne Convention, as referred
to in Article 70.2 of the TRIPS Agreement.  Equitable remuneration, as stipulated under Article 70.4,
is under consideration.
9. We would appreciate receiving a copy of the draft amendment to Article 56 of the Patent
Law.
The text of the draft amendment to Article 56 of the Patent Law currently under legislative
review reads:
"Unless otherwise provided for in this law, the patentee of a patented article shall have the
exclusive right to preclude other persons from manufacturing, offering for sale , selling,
using, or importing for above purposes the patented article without his prior consent."
"Unless otherwise provided for in this law, the patentee of a patented article shall have the
exclusive right to preclude others from using such process and using, offering for sale ,
selling, or importing for above purposes the articles made through direct use of the said
manufacturing process without his prior consent."
"The scope of an invention patent right shall be determined based on the claim(s) set forth in
the specification of the invention.   Explanation of the claim may be referred to the
description and drawings of the invention ."
__________