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 gives 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.

R.O.C. follows the principle of copyright protection upon creation. A creator enjoys copyrights as soon as a work is completed. Copyright registration is not a prerequisite for obtaining copyright. In other words, no formal application is necessary to obtain copyright. In fact, the 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.

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.

To generate economic value, works must be circulated for use. Apart from assigning (selling) the economic rights of their works in exchange for valuable consideration, authors may also license others to use ("exploit") their works in exchange for royalties, increasing the economic value of the works. For persons wishing to use works of others, economic rights licensing is the usual avenue taken for lawful use of such works.
An "economic rights license" basically refers to a private contract between a user (exploiter) of a work and the economic rights owner of the work. Such contracts are stipulated between the exploiter and the economic rights owner according to their mutual intent, based on the principle of freedom of contract. Any particulars that are not clearly covered by stipulations for use (exploitation) are presumed not having been licensed, so as to protect the economic rights holders. Therefore, license contracts should be made in writing. The more specific and detailed the content, the less likely that any dispute may arise later on.
Generally speaking, the content of a license contract should be stipulated between the two parties according to their needs, and should cover the territory, term, content (which economic rights are licensed), method of exploitation, amount of the royalties and means of payment, and other particulars of the license. It is highly recommended that license contracts be made in writing to avoid subsequent disputes. Also, if the genuine intent of the parties is to sign an "exclusive license" contract, this should also be explicitly stated to avoid subsequent disputes.

Under the R.O.C. Copyright Act, before making any use of a work to which another person enjoys the economic rights (if the use involves any exclusive right or power of the economic rights owner), it is always necessary to obtain permission or licensing from the economic rights owner, except under certain circumstances of "fair use" that are specified in Articles 44 to 65 of the Copyright Act. In principle, licensing is not required if the use of a work in a specific case clearly conforms to explicit fair use provisions of the Copyright Act. When determining what constitutes fair use in cases not explicitly addressed by the fair use provisions, no single rule of thumb can be applied in all cases. It is necessary to consider the four standards set out in Article 65, paragraph 2, of the Copyright Act: (1) the purposes and nature of the exploitation, including whether such exploitation is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the work; (3) the amount and substantiality of the portion exploited in relation to the work as a whole; (4) the effect of the exploitation on the work's current and potential market value. For example, if a student who is writing a thesis and needs to use material from a book to which another person owns the economic rights photocopies a portion of the book, it probably falls within the scope of fair use if the copied portion accounts for only a small part of the entire book and will not encroach upon the market for the book. In such a case, the student and photocopy business are not likely to face infringement issues. However, if a student photocopies the entire textbook for use in a class, then he or she has in effect encroached on the market for the book and exceeded the scope of fair use, constituting infringement of copyright.

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.
(2) You may demand compensation (for damages).
(3) You may request the destruction or other necessary disposition of goods produced as a result of the infringing act, or of articles used predominantly for the commission of infringing acts.
You are also entitled to pursue criminal prosecution by filing a complaint with the prosecutor or a private prosecution with the court.

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).

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.

Even if you didn't pirate the software, merely using pirated software installed by others in the course of doing business is still considered an infringement of copyright under the Copyright Act, and carries civil and criminal liability. The criminal liability, however, falls in the category of crimes prosecutable on complaint only, so criminal prosecution cannot proceed unless a complaint has been filed.