Draft Amendment to Copyright Intermediary Organization Act Submitted for Legislative Deliberation.

The Executive Yuan has passed the proposed Copyright Intermediary Organization Act (the Act) on 17 September 2009 and the Act was submitted to the Legislative Yuan on 22 September for deliberation.

After the enactment of the Act on 5 November 1997, issues that require discussions and amendments arise thereof.  By referring to the legal framework governing the legislation of Copyright Act in countries such as Japan, Germany, and Canada, etc., it is noted that these countries all emphasized on the essence of collective management of the Copyright.  Therefore, the name of the Act is proposed to be amended into Copyright Collective Management Organization Act, with the proposed amendments as follows:

1.  The term copyright intermediary organization is to be amended into copyright collective management organization, whereas the term copyright intermediary affairs is amended into copyright collective management affairs.  (Articles 3, 4, 6-12, 14-21, 23, 27, 29, 31-44 of the proposed amendment)

2.  The competent authority referred to in the Act shall be changed to the Ministry of Economic Affairs.  (Articles 2, 4, 8, 9 and 40-43 of the proposed amendment)

3.  Amending the definitions of terms, including copyright collective management organization (hereinafter collective management organization) and copyright collective management affairs, by deleting the prerequisite set forth regarding the establishment of collective management organizations have to be organized by copyright holders under the same category.  (Article 3 of the proposed amendment)

4.  In order to resolve the inconvenience caused by the different royalty rates charged by different collective management organizations, a provision is proposed to set up a common royalty standards for circumstances when two or more collective management organizations are involved and the provision should also include that the relevant fees should be collected by the designated collective management organization among the entire organizations.  (Articles 3 and 30 of the proposed amendment)

5.  In consideration of the autonomy and the practical needs of the collective management organization, articles of organization of the collective management organization shall provide the procedures relating to the change of the rate or amount of management fees and the royalty rate.  (Articles 4, 7 and 16 of the proposed amendment)

6.  In line with the newly enacted provision regarding assistantship under the Civil Code, no individual declared as a person under assistance may act as a promoter.  (Article 6 of the proposed amendment)

7.  For better controlling of the total number of collective management organizations, new requirements will be added for the application of new establishment of collective management organization.  Depending on the circumstances, if the existing collective management organizations can well serve their functions to the general public, the competent authority can deny establishment of new collective management organization.  (Article 8 of the proposed amendment)

8.  Deleting the provision which prohibits a member to grant or cause a third party to grant any license on his/her behalf; meanwhile, an amendment is proposed that the decision can be made by the collective management organizations and their members in accordance with the articles of organization or management agreement.  (Article 14 of the proposed amendment)

9.  Additional factors for consideration for fixing common royalty rate.  The  royalty rate as fixed or changed must be publicly announced and submitted to the competent authority for filing purposes.  The Copyright Authority will intervene on and only on the request by the copyright user disputing the rate.  The disputing copyright user will pay a Temporary Payment before the rate disputed is determined and make up the royalty payable according to the rate fixed with his/her use of the copyright on the Temporary Payment immune from civil or criminal prosecution.  (Articles 24-26 of the proposed amendment)

10.  Collective management organizations will no longer be required to produce a list of the copyrights under their management in the format required, provided that they shall still upon request provide the relevant information with respect to their management.  (Article 27 of the proposed amendment)

11.  Within the effective term of the license agreement, the user does not have to pay additional royalty to member who has withdrawn during the execution of the license agreement.  However, the said member can still request the former collective management organization for due distribution of its share of royalty.  (Article 31 of the proposed amendment)

12.  The user can release his/her obligation to provide the utilization list by entering into a contract.  (Article 37 of the proposed amendment)

13.  The collective management organization can file criminal complaint in its own name only through exclusive license or transfer by trust.  (Article 39 of the proposed amendment)

14.  In order to strengthen the effects of supervision and assistance on collective management organization, the Copyright Authority can impose a fine on organization which failed to change the method by which it operates business following the order of Copyright Authority.  (Articles 44 of the proposed amendment) (2009.10)
/DC