پویش های مذاکرات دوجانبه مالکیت معنوی: تایوان و ایالات متحده

This study analyzes the progress of copyright enforcement in Taiwan in the period from 1985 to 2000. As a rapidly industrializing region, Taiwan has faced significant pressure from its international trade partners to improve intellectual property protection. This pressure has been strongest from the United States, Taiwan's largest partner. Analysis of the progress of intellectual property protection in Taiwan provides an opportunity to learn more about the dynamics of intellectual property policy development in developing countries, and the impact of U.S. actions on internal IP politics and cultural development. The paper will survey the significant milestones in Taiwanese copyright policy development over the last two decades and conclude with a conceptual model that can be tested by analysis of other case studies of cross-jurisdiction intellectual property relationships.

This study analyzes the progress of copyright enforcement in Taiwan in the period from 1985 to 2000. As a rapidly industrializing region, Taiwan has faced significant pressure from its international trade partners to improve intellectual property protection. This pressure has been strongest from the United States, Taiwan's largest partner. Mechanisms such as the Special 301 Provision of the 1974 U.S. Trade Act have played an important role of pressuring Taiwan to improve copyright enforcement. Media companies based in the United States have also had a significant impact, as their branches in Taiwan have undertaken litigation against copyright infringers. Within this context, Taiwan's Intellectual Property Office (TIPO) was established as a dedicated governmental agency responsible for copyright enforcement and public education within Taiwan, and advocacy for Taiwan's position to the United States and other trading partners. In Taiwan, copyright enforcement is seen both as an information and economic policy issue. In order to avoid trade sanctions, the Taiwanese government has been consistently attentive to the annual Special 301 Report and is diligent in addressing the U.S. Trade Representative's (USTR) concerns. From an internal perspective, strong intellectual property protections are increasingly viewed as beneficial for improving Taiwan's investment climate by helping Taiwan's industries to develop and protect their own IPR portfolios. Analysis of the progress of intellectual property protection in Taiwan provides an opportunity to learn more about the dynamics of intellectual property policy development in developing countries, and the impact of U.S. actions on internal IP politics and cultural development. The paper will survey the significant milestones in Taiwanese copyright policy development over the last two decades and conclude with a conceptual model that can be tested through analysis of other case studies of cross-jurisdiction intellectual property relationships.

The Taiwanese government will keep making intensive efforts to develop the IPR environment. On February 17, 2005, Jack Lu, Deputy Director General of TIPO, mentioned that the TIPO's goal was to develop a comprehensive IPR environment for inventors and users (Anonymous, 2005b). While TIPO will continue to work with the Customs, the Ministry of Education, and the judiciary on existing programs, he stated that TIPO will focus on initiatives relating to education. The Customs will cooperate with copyright holder associations to assist officers in enhancing inspection skills, while the Ministry of Education will make IPR awareness an important objective in all technological and vocational education programs. IPR week events would be held at least once a year on campus, and TIPO launched an IPR Training Academy, providing IPR awareness courses at colleges, universities, training organizations, and companies. The Academy aimed to develop 200 instructors in 2005, responsible for training over 1,000 IPR professionals in 2006, 2007, and 2008. Patricia Judd, Director of International Copyright Enforcement of the AAP, indicated that Taiwan have evolved to become a model for copyright enforcement (Anonymous, 2005a). For example, she stated that Taiwan's book industry continued to perform an active role to assist the government to crack down on book piracy. In addition, she indicated that fighting global book piracy is difficult and the AAP will continue to cooperate with foreign governments and other international publisher organizations to combat piracy. In general, Taiwan is viewed as a success in fighting copyright infringement. However, the Taiwanese experience points out several factors that may impact bilateral attempts to negotiate intellectual property regimes in developing countries. These factors are summarized in Table 1. Key issues to consider include the following: • There will a period of distrust of motives between potential partners, which can be mitigated by a trusted broker. Traditions of mistrust affect not only present activities, but attempts to move to new levels of cooperation. • Publishers in Taiwan were the first group to enthusiastically embrace new copyright laws when they saw the laws could support their businesses. If the IP industry is likely to lead in adoption of new IP protections, it behooves U.S. government and industry representatives to treat them as partners, rather than as pirates. • The U.S. Section 301 status was an important motivator for change within the Taiwanese government, who were primarily concerned by the economic impacts of trade sanctions. This suggests that U.S. Section 301 pressures will be more effective when developing countries are motivated by their own trade priorities. • Persistent Taiwanese concerns about the affordability of books for scholars and students because of differences in ability to pay impacted legislative decision making and implementation. New penalties and lack of legal alternatives drove businesses underground but did not extinguish the market. Effective efforts to change intellectual property regimes must recognize legitimate cultural and economic concerns and respond in appropriate ways. • The Taiwanese relied not only on law to implement intellectual property reform, but more importantly on “cing li fa” (emotional feeling proceeding rational thought, which proceeds the law). An old Taiwanese saying is that “e fa bu shou” (you do not have to obey a bad law). Taiwan's emphasis on community education should not be viewed as a weak response, but a culturally sensitive mechanism to change citizen perceptions about the importance of intellectual property protections. • American lobbying associations have played an active role not only in lobbying for changes in U.S. policies, but also directly by bringing lawsuits in Taiwan and participating in enforcements Task Forces. However, this provoked resentment by the Taiwanese populace, who resented the interference. Future direct partnerships should be sensitive to this concern. • It is difficult to export concepts like ‘fair use’ absent the legal and historical context in which they developed. The first use of the four American aspects of ‘fair use’ was inserted without context in the Taiwanese law and could be construed as a blanket exemption rather than an affirmative defense. To date, fair use criteria are still vague. Copyright law does not specify what amount of the portion used in relation to the copyrighted work as a whole is legal (“Taiwan Copyright Act,” 2004). Yet there is no consensus on this issue (Chen, 2004). TIPO suggests that professors and students follow the practice in the United States and Hong Kong—10% of the copyrighted book (TIPO, 2006). • Difference is categories of law can lead to different outcomes with respect to enforcement and punishment. Non-commercial infringement in the United States is a civil violation not tied to imprisonment or affirmative government action, but in Taiwan it is considered an offense which may lead to jail terms, even without intent to sell. The charge of a public offense requires a prosecutorial process, in which individuals can not negotiate private settlements. • Pressure on Taiwan to criminalize non-commercial copyright infringement may have a long term negative effect on enforcement, because copyright infringement can not be viewed as equal to other offenses requiring prosecutorial attention. If American media companies do not continue pressuring Taiwan, prosecution could be expected to slacken. Alternatively, Taiwanese resistance to prosecution may rise. Table 1. Stakeholders 1985 1986 1989 1991 1992 Early 1993 Late 1993 1994 1995 1997 1998 1999 2000 2001 2002 Early 2003 Late 2003 2004 2005 U.S. Associations *AAP Wins case in TW Supreme Court *Chamber of Commerce wants to “upgrade” TW to a Priority Foreign Country (TW division strongly disagrees) *AAP successful lobbying in GATT (WTO) *AAP sends letters to warn all TW college students against unauthorized photocopying *U.S. and British publishers jointly send letters *AAP reluctant to lower prices due fear of Internet textbook trade *AAP indicated TW has evolved as copyright enforcement model; *AAP initiates investigations with partner law office in TW *AAP join raids *AAP provides rewards for people who report infringements U.S. Government *Started targeting TW through Special 301 Provision *Clinton Administration “Upgraded” TW to the Priority Watch List *Satisfied with TW progress. “Downgraded” TW to the general Watch List *Viewed TW legislation as good, but enforcement weak *Supports the WTO TRIPS agreement. *Seized pirated versions of CDs and DVDs from TW, worth US$42 million *Seized amount decreased 86% *“Upgraded” TW to Priority Watch List because of persistent problem of law enforcement *Kept TW on the Priority Watch List *Kept TW on the Priority Watch List *Kept TW on the Priority Watch List *“Downgraded” TW to general Watch List *Set an Immediate Action Plan for TW Knew TW's eagerness for FTA and seized this chance to ask TW to: *Concerned with: *Commended TW for better enforcement *Will monitor TW efforts to halt illegal textbook copying, reform legal system, and enact data protection law (1) extend the copyright protection to 70 years; and (1) unsuccessful raids; * Deficiency remaining in 2003 law revision; will work with TW on legislation *Urges TW to work together to achieve remaining IPR objectives (2) regard copyright infringement as a public offense. There were already civil punishment (fine) and criminal punishment (jail term) for infringing without the intent to sell, infringing with the intent to sell, and infringing as a vocation. (2) regulatory agencies lacked experience and coordination; and *USTR recommends AAP lower textbook prices (3) lengthy copyright lawsuits ended up with minor penalties Taiwan Government *Copyright law revision—foreign works created after 1965 receive protection without requiring registration *Supreme Court favors AAP *Copyright law revision—extended copyright protection for an author (life + 50 years) *Copyright law amendment—parallel import of copyrighted goods without permission became illegal. *Unauthorized government translations not publicly displayed *Eager to join WTO—legislature working on revising copyright, patent, and trademark laws *Works on law revision to comply with WTO TRIPs *Established a dedicated bureau in charge of copyright enforcement—TIPO *Declares 2002 “the action year for IPR” *Eager to develop a bilateral Free Trade Agreement (FTA) with United States *Proposed bill: *Passed bill: *Refines copyright law to increase punishments *National institute should translate more textbooks *Set deadline of disposing unauthorized reprints *Low level officials overreact to the 301 tension-turn back all U.S. shipments *National institute director suggest institute should get translation rights *Extended protection for juristic persons—extends protection of prior published works to 50 years (creation date + 50 years) *Immediately made efforts to crack down on piracy *Expanded IPR task force *Start nationwide twice-yearly raids (1) increasing the civil and criminal punishments for unauthorized reproduction; and (1) civil and criminal punishments increased; and (2) unauthorized photocopying still not regarded as a public offense. *Increases raid effectiveness *Libraries should buy more copying machines *Introduced fair use criteria—article 65 of 1992 TW Copyright Act copied from the fair use factors in the Section 107 of U.S. Copyright Law. (not labeled fair use until 1998) *Met the key requirements set by United States—sign a bilateral copyright agreement *Remained undecided about whether libraries needed to destroy unauthorized reprints *Term “fair use” officially added in the article 65. Defines fair use as not a copyright infringement. *IP initiatives driven by 301 pressure *Creative public educational projects carried out—Mr. Copyright (2) regarding copyright infringement as a public offense *Fair use criteria still vague. *IPR training seminars for judges and prosecutors *The punishments for infringing with intent to sell were identified and enhanced *Argues that copyright regime would promote a healthier publishing environment *Enforcement problematic—agencies lack experience and resources *Develops a specialized IPR court *Infringing as a vocation becomes a public offense Taiwan Publishers *Collects all unauthorized reprints *First copyright agency—Big Apple *Second copyright agency—Bardon *Pioneers in copyright practice begin *More interested in buying legal rights *Held clearance sales of all unauthorized reprints *TW Book Publishers Association join raids *Unauthorized photocopying began to appear *Encouraged people to preserve knowledge *Feared that the supply of foreign knowledge would fall short of demand Taiwan General Public *Fears a possible crisis of education *Going though a period of cultural adjustment *Felt bullied—United States pressuring TW more strictly than it did other Asia countries *Foreign textbooks were not affordable *301 storms influence the general public's IPR awareness. *Photocopying shops become aware of the law *Students protest U.S. pressure *Feared possible crisis of education, due to cost of legal versions *Some foreign textbooks not in popular demand were not legally available *Legal versions not affordable to libraries *Unauthorized photocopying should not be a public offense *Penalty for selling or buying unauthorized reprints after the deadline vague *Knowledge should not be expensive *Foreign companies should re-consider pricing strategies *Law should give special considerations for books- and knowledge accumulation Table options With these factors in mind, it is possible to develop a preliminary model of bilateral intellectual property negotiations, as shown in Fig. 1. Full-size image (65 K) Fig. 1. Preliminary conceptual model. Figure options This model emphasizes that, while at the state level intellectual property negotiations are a bilateral affair, in reality they involve at least five key stakeholder groups. The model also identifies key variables that may provide further insight into differences between case studies as comparative analysis goes forward. If the identified variables are critical to the success or failure of IP negotiations across countries, it would be expected that variable changes would lead to different outcomes in other situations. Research and analysis of more case studies is therefore needed to test the validity of the model and the variables identified in the diagram.