Policy and Regulation IN NEW MEDIA

Cases

1. Fair Use
Taiwan was having a vague concept of fair use. It can be seen by a case regarding the copyright of MP3 (Sun, 2000). The National Cheng-Kung University (NCKU) is a renowned engineering school. Students of this university maintain an active usage of internet and downloading and swapping MP3 music files. Local police received an anonymous complaint that NCKU students were involved in the downloading of illegal music and pornographic files. After investigation, the police discovered at least 14 computers contained such kind of files and International Federation of the Phonographic Industry (IFPI) Taiwan was involved to pursue the case. Since the involvement of several senior government officials as well as the university presidents, the case was settled merely by a formal apology from the 14 students and their parents, plus a number of concrete steps NCKU agreed to undertake in the management of online IP issues.

Analysis: Taiwan is adopting a take-no-prisoner attitude regardless how wrong those consumers were. Instead of examining the purpose and character of the use, the nature of the work, the amount and substantiality of the work used, and the effect of the use on potential market before passing judgment on the issue, they emphasize much on the "individual or family" consumption, not-for-profit and within reasonable scope only. This seems to suggest that the not-for-profit use of a personal computer duplicating files is always within the fair use protection that will possibly result in a blurred legal system.

2. Reciprocal Intellectual Property Protection
As mentioned earlier, Taiwan used to recognize the IP protection for work produced in a country with bilateral agreement. Such arrangement can be found in Nintendo of America, Inc. vs. NTDEC case for copyright infringement and trademark damages (Sun, 1998). The accused infringers are NTDEC, Nintendo Electronic Co. (located in Taiwan), Mega Soft Inc. (a California company served as a front for the defendants) and four other individuals (all citizens of Taiwan). The defendants openly acknowledged that they had knowingly sold counterfeit Nintendo video game cartridge to the United States and elsewhere from at least as early as 1990 and they knew their action were illegal. Nintendo Co. Ltd. of Japan used to seek Taiwan's enforcement of its rights, but since Japan has only a limited reciprocal arrangement with Taiwan, it only filed the claim through its subsidiary, Nintendo of America, Inc. which locates in the United States. In the default judgment, the district court held the defendants liable both jointly and severally and awarded Nintendo of America Inc. more than US$24 million in damages and US$109,000 for attorney fees.

Analysis: The reciprocal arrangement can be used by the counterfeit businesses to infringe others' IP rights for companies or individuals of foreign origin which do not have a reciprocal arrangement on IP protection with Taiwan. Followed by Taiwan's accession to WTO, both the foreign companies and Taiwan's own interests are being better protected.