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DE RUEHIN #0745/01 1510950
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P 300950Z MAY 08
FM AIT TAIPEI
TO RUEHC/SECSTATE WASHDC PRIORITY 9043
INFO RUEHOO/CHINA POSTS COLLECTIVE
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UNCLAS SECTION 01 OF 03 TAIPEI 000745
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STATE PASS USTR/DAVID KATZ AND JARED RAGLAND
USDOC FOR 4431/ITA/MAC/AP/OPB/TAIWAN
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USDOC PASS TO USPTO GIN, BROWNING, AND LOC STEPP
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E.O. 12958: N/A
TAGS: ECON ETRD KIPR TW
SUBJECT: Taiwan IPR: 301 Watch List OCR Process Update
Ref: A) State 43143; B) Taipei 734
1. (SBU) Summary: Taiwan is making progress in two of the three
areas outlined in last month's 301 Watch List submission for Taiwan
(ref A). The process of finalizing language for the internet service
provider (ISP) amendments to Taiwan's Copyright Act has stalled due
to ISP-industry objections over language that rights-holders believe
is important to giving the legislation teeth. The Taiwan
Intellectual Property Office (TIPO) now predicts that it will not be
able to pass the final draft to the Executive Yuan (EY) until August
at the earliest. In better news, the Intellectual Property (IP)
Court is set to open on July 1, and will begin accepting new cases,
including appeals, on that date, and the Ministry of Education (MOE)
invited rights-holder and university representatives to another
meeting of its IP task force to review progress under the ongoing
Campus IP Action Plan. End summary.
TIPO Still Working on ISP Language
-----------------------------------
2. (U) On May 22, econoff met with Margaret Chen, Deputy Director
General of TIPO, and Chang Yu-ying, Director of the TIPO Copyright
Office, to discuss the current state of draft amendments to the
Copyright Law that would limit an Internet service provider's (ISP)
liability if the ISP quickly removed IPR-infringing material. This
is the latest version of the amendments that TIPO first drafted in
March 2007.
3. (SBU) Chang told us that after contentious public hearings on
February 14 and May 7, the ISP industry and rights-holder groups
still hold differing opinions on the draft amendments, with
rights-holders pushing for inclusion of clear language outlining
contributory or secondary liability for ISPs that negligently allow
copyright-infringing materials to be hosted by their service
(article 88 in the previous draft version), and ISPs strongly
opposed to including such references. ISPs also worry that the
draft language neither adequately protects ISPs from civil suits
with a clear "safe-harbor" provision, nor protect ISPs from possible
criminal suits, since copyright infringement in Taiwan can be
subject to criminal prosecution. Other differences include each
side's opinion on the definition of what an ISP is, and meanings for
several other technical terms, but both sides agree that the key
issue is secondary liability.
4. (SBU) Chang told econoff that the MOJ has verbally affirmed to
TIPO the MOJ view that current ROC law (article 128 of the Civil
Code) already contains the concept of secondary liability, that this
would be applicable to ISPs, and that it would therefore be
unnecessary and improper to re-state such liability in the ISP law
draft. She said that MOEA has formally requested that the MOJ
provide a clear written explanation on this question in order to
allay the concerns of rights-holders. She expects a reply from the
MOJ in June, after which TIPO--assuming that rights-holders are on
board--can complete the ISP law draft with the MOJ notes as
reference materials by late June or early July, and then submit its
final draft to the Executive Yuan in August.
5. (SBU) Local rights-holder groups IFPI Taiwan and Taiwan
Foundation Against Copyright Theft (TFACT), however, strongly prefer
including the current language in article 88 with clear statement of
secondary liability for ISP operators. According to the two groups,
although the Taiwan Civil Code contains the concept of liability for
contributory or vicarious infringement, rights-holders fear that the
Code is not clear enough about whether this liability would apply to
ISPs. Rights-holders are somewhat flexible on this, however, and
have told us that they could accept TIPO dropping "article 88"
language as long as the MOJ written explanation is satisfactory and
the final amendments retain article 90 quinquies, which states that
ISPs can be free from liability if they have taken swift action on a
take-down notice.
6. (SBU) Econoff passed on USTR's request that TIPO accept another
round of feedback from USTR on the current version of the
amendments. Chen said TIPO will, of course, offer an English version
of the ISP draft to the U.S. side for comments as soon as TIPO
completes the ISP draft, and will welcome U.S. reactions and
suggestions. She said the MOJ's clarification about secondary
liability and U.S. comments will be key factors in determining the
progress of Taiwan's ISP law legislation. Chen said that TIPO knows
that the ISP law is a key factor in USTR's OCR, and that TIPO will
continue to do its best to push a good ISP law to the LY as fast as
possible.
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IP Court on Track for July Opening
----------------------------------
7. (SBU) On May 23, econoff met with Kao Shiou-jen, Director of the
Judicial Yuan (JY) Preparatory Office for the Intellectual Property
Court and, after July 1, the President of the IP Court. Ms. Kao
confirmed that the IP Court will begin operating on July 1 by
accepting both new cases and appeals from cases that finished on or
before June 30. She said that while the court will start with only
eight judges, the JY plans to review this number after a suitable
period has passed. At the initial stage, the IP court will also have
nine technical experts who will serve as advisors and case review
officers, and will also be available to support judges in
district-level courts if needed. To support the IP Court, the
Ministry of Justice will set up an office with three specialized IP
prosecutors.
8. (SBU) Although JY regulations call for judges to complete
first-instance cases within 16 months, Kao said that the IP Court
will expect its judges to finish cases within 12 months. Also, the
Court will ask its judges to complete criminal cases that have been
appealed from local courts--a process that typically takes 24
months--"as quickly as possible."
MOE Gets Together with Industry and School Reps
--------------------------------------------- --
9. (U) On May 12, the Ministry of Education (MOE) convened the third
meeting of its IP Task Force to review university progress under the
ongoing Campus IP Action Plan, which went into effect in October
2007.
10. (U) At the May 12 meeting, the MOE presented an interim report
on progress thus far under the Action Plan. According to the report,
127 of Taiwan's 165 universities have set up IP protection teams on
campus, most chaired either by the school's President or Vice
President. 146 universities have held seminars, training programs,
or short courses to promote the concept of IP protection on campus.
Almost every university has distributed information on fair use of
copyrighted materials and other IP information to both teachers and
students, and 117 have set up IP consulting mechanisms for faculty
and students to clarify fair-use and other IP-related questions with
scholars and legal experts. 78 universities invited TIPO's IP
service team to conduct IP promotion activities on campus, and 73
sent teachers to take IP training from TIPO's IP Institute.
11. (U) 132 of 165 schools now include language in contracts with
on-campus copy shops that allow the universities to terminate shops'
contracts if the shops are found to have violated Taiwan's copyright
laws, and an MOE staff member told us that the remaining 33
universities will insert similar language into such contracts at the
time of the next renewal. According to the MOE report, almost all
universities now affix warnings against illegal copying onto or near
all campus photocopying machines. The majority have also established
physical or virtual platforms for used-book exchange.
12. (SBU) To fight internet IPR violations, 159 universities have
incorporated MOE guidelines into rules governing on-campus use of
the island-wide academic network TANet, and almost all of these
schools have established procedures to impose punishments on
students who repeatedly and seriously infringe on intellectual
property rights, and about 150 have set ceilings on data
transmission and installed various measures to prevent infringement
from P2P software. Local rights-holder groups--while still
concerned about copyright infringements on TANet--tell us that they
are pleased with the recent MOE pledge to respond to rights-holder
TANet complaints within 60 days, and to periodically post on the MOE
homepage statistics about TANet violations.
Comment
-------
13. (SBU) We are confident that the IP Court will open as scheduled
on July 1, and we assess that MOE-led campus IP enforcement efforts
are moving forward, although the pace could be faster. The lack of
progress toward satisfactory ISP-amendment language is
disappointing, however, as the local ISP industry has continued to
raise objections that need to be reviewed and addressed. Much will
depend on the MOJ evaluation of how adequate secondary-liability
concepts are in the current Civil Code. Although rights-holders are
willing--under certain conditions--to accept a final version that
lacks current "article 88" language, we will continue to use every
occasion to push TIPO both to finalize amendments clearly
TAIPEI 00000745 003 OF 003
incorporating the concept of secondary liability, and to move such a
bill to the EY after additional industry and U.S. feedback. End
comment.