With the rise of the internet generation, many forum sites or portal websites offer a large amount of audiovisual content. People often use computers or mobile apps to easily search for and download or share these works. But is it really possible to download or share content from the internet freely without paying? Could you actually get sued for doing this?
First, it is important to understand what "works" are protected under copyright law.
According to Article 5 of the Copyright Act, the scope of "works" is very broad. It includes works in literature, music, drama, dance, fine arts, photography, graphics, audiovisual works, sound recordings, architecture, computer programs, and other creations in the fields of literature, science, art, and academia. However, to be eligible for protection under the Copyright Act, a work must possess "originality."
The so-called "originality," according to the key points of court rulings, refers to the creation that is independently completed by the author to express their inner thoughts or emotions. Of course, "originality" must not only have "novelty" but also "creativity." "Novelty" means that the work is independently created by the author and is not a result of copying or plagiarism. "Creativity," on the other hand, refers to the work having distinguishable differences from previously existing works, sufficient to reflect the personality of the author, without necessarily being something entirely unprecedented.
Furthermore, according to Article 9, Paragraph 1 of the Copyright Act: constitutions, laws, orders, official documents, translations or compilations of laws or official documents made by central or local government agencies, slogans, commonly used symbols, terms, formulas, numerical tables, charts, books, calendars, and language works created for the sole purpose of conveying factual news reports, as well as examination questions and backup questions created by law for various exams, are not subject to copyright protection. Therefore, as long as a work possesses "originality" and does not fall into the categories excluded from protection under the Copyright Act, it is eligible for copyright protection.
Next, what is the "scope" of copyright protection?
Taking "audiovisual works" as an example, this is not limited to "musical works," but also includes "audiovisual works" and "sound recordings." In this regard, court rulings have clearly defined that a "musical work" refers to an art form that appeals to the sense of hearing through "sound" or "melody." In addition to "lyrics," it also includes "musical compositions" and "sheet music." Therefore, any original creation of musical melodies, lyrics, and vocal arrangements, among others, is included.
Therefore, depending on the type of authorization, the licensing of musical works can generally be divided into categories such as musical melody, lyrics and composition performance, accompaniment, and vocals. For example, in the case of karaoke machine operators, to provide music accompaniment for consumers, the license they obtain should at least include the musical melody and the accompaniment for the lyrics and composition.
Since "audiovisual works" involve both "visual" and "auditory" elements, they naturally include films, videos, discs, images displayed on computer screens, and other images presented through mechanical or electronic devices, which distinguishes them from "musical works."
As for "sound recordings," according to court rulings, they refer to "any work that represents a series of sounds through mechanical or electronic devices and can be fixed on any “medium”... If it is merely a simple recording without any processing through machinery or equipment, it can only be called a “reproduction,” not a sound recording." In other words, it refers to the creation of a sound work by capturing the performance's "sound," processing it with mechanical or electronic devices, and then fixing the processed sound onto a "medium."
As we can see, whether it is a "musical work," "audiovisual work," or "sound recording," all are protected under copyright law. However, can audiovisual works be downloaded or shared freely without the authorization of the rights owner?
According to Article 22, Paragraph 1 of the Copyright Act, unless otherwise provided by law, the author has the exclusive right to "reproduce" their work. Under Article 3, Paragraph 1, Item 5 of the Copyright Act, "reproduction" refers to the act of making a copy through methods such as printing, photocopying, recording, videotaping, photographing, transcribing, or other means, either directly or indirectly, permanently or temporarily.
Therefore, even recording a script, music, or performances of similar works, or making recordings or videos during broadcasts, is considered "reproduction." As a result, if one wishes to reproduce another's work, they must obtain the consent or authorization of the rights owner. Otherwise, it will constitute copyright infringement, and under Article 91, Paragraphs 1 and 2 of the Copyright Act, the infringer may be subject to imprisonment for up to three years, detention, or a fine not exceeding NT$750,000, or both.
If the infringement of another person's copyright is committed with the intent to sell or rent, and the reproduction method is used without authorization, the penalty is increased to imprisonment for not less than six months but not more than five years, and a fine ranging from NT$200,000 to NT$2,000,000 may also be imposed.
It is clear that internet "downloading," whether direct, indirect, permanent, or temporary, constitutes a form of "reproduction." If a person downloads without obtaining the authorization or consent of the rights holder, they may face criminal prosecution if the rights owner files a complaint.
Does this mean that all acts of reproduction are illegal? Not necessarily.
In this regard, Article 91, Paragraph 3 of the Copyright Act also stipulates: "Reproductions made for personal reference or fair use do not constitute copyright infringement." In other words, if the reproduction by the individual qualifies as "fair use" under the law, that act of reproduction does not constitute infringement.
It is worth noting that while the scope and relevant regulations of "fair use" are clearly defined in Articles 44 to 63 of the Copyright Act, in practice, courts often consider the following factors:
1. The purpose and nature of the use: for example, whether it is for "commercial" or "non-commercial" purposes
2. The nature of the work
3. The quality of the use and its proportion within the entire work
4. The effect of the use on the potential market and current value of the work
For example, when reproducing "musical" or "sound recording" works, the most commonly cited "fair use" is found in Article 51 of the Copyright Act, which allows for "reproducing publicly released works for personal or family use, non-commercial purposes, within reasonable limits, using machines in libraries or machines not intended for public use."
In this regard, the competent authority for the Copyright Act, the Intellectual Property Office of the Ministry of Economic Affairs, has stated that if downloads are made on personal machines at home and are for personal or family use, and if the downloads are minimal and do not negatively impact the market sales of music products, it may be considered "fair use”.
As for "sharing," Article 26-1, Paragraph 1 of the Copyright Act stipulates: "The author has the exclusive right to the “public transmission” of their work, unless otherwise provided by this Act." The term "public transmission," as defined in Article 3, Paragraph 1, Item 10 of the Copyright Act, refers to providing or communicating the content of a work to the public through wired or wireless networks or other communication methods, using "sound" or "images."
In addition, "public transmission" also includes situations where the public can receive the content of a work at a time or place of their choosing using the methods mentioned above. Therefore, if one wishes to publicly transmit another's work, they must obtain the consent or authorization of the rights owner. Otherwise, it may constitute copyright infringement, and under Article 92 of the Copyright Act: "Anyone who infringes upon another's copyright through unauthorized public oral presentations, broadcasts, screenings, performances, transmissions, displays, adaptations, edits, or rentals shall be punished with imprisonment for up to three years, detention, or a fine not exceeding NT$750,000, or both."
It is important to note that the recognition of fair use for "public transmission" is stricter. Therefore, except for cases under Article 50 of the Copyright Act, which allows for the reproduction, public broadcasting, or public transmission of works published by central or local government agencies or public organizations within reasonable limits, and Article 61 of the same law, which allows for the reproduction, retransmission, or public broadcast of articles concerning political, economic or retransmission, or public broadcast of articles concerning political, economic, or social issues published in newspapers, magazines, or on the internet, unless otherwise stated that no further reproduction, public broadcast, or public transmission is allowed, it is more difficult to justify "fair use."
Additionally, in practice, it is widely understood that "public transmission" is characterized by interactive forms of transmission, such as computer or internet- based methods, distinguishing it from other methods of conveying works, such as public oral presentations, broadcasts, or performances. As for the "providing to the public" requirement in the provision, it is not necessary for the person to actually transmit or receive the work; it is sufficient if the work is in a state where it is available for the transmission or reception.
In this regard, the court has ruled that the defendant, by connecting to the internet via a computer network and sharing illegally downloaded and reproduced music works, subsequently uploaded them to a free online storage space provided by the Xuite blog service of Chunghwa Telecom, allowing unspecified users to select and download music files for immediate listening. This act violated Article 91, Paragraph 1 and Article 92 of the Copyright Act for unauthorized "reproduction" and unauthorized "public transmission."
The court has also ruled in another case that the defendant, by providing a link that allowed unspecified individuals to independently download and transmit, and by reproducing the files on their own computer hard drives or memory, was involved in multiple instances of unauthorized reproduction and public transmission. By providing the link to enable unspecified individuals to download music recording files, the defendant violated Article 91, Paragraph 1 ("reproduction") and Article 92 ("public transmission") of the Copyright Act.
As for civil liability, according to Article 88 of the Copyright Act, if an individual intentionally or negligently infringes upon another person's copyright, they shall be liable for damages.
As for the scope and method of damages, it is governed by Article 216 of the Civil Code If the victim is unable to prove the damages the damages may be calculated as the difference between the benefits the victim could typically expect to gain from exercising their rights and the actual benefits obtained after the infringement. Alternatively, the victim may request the infringer's profit derived from the infringement as the measure of damages.
Additionally, if the victim is unable to prove actual damages, they may request the court to determine the amount of compensation based on the circumstances of the infringement, with the amount ranging from NT$10,000 to NT$1,000,000. For intentional infringements with serious circumstances, the compensation amount may be increased to as much as NT$5,000,000.
In short, downloading from the internet constitutes a "reproduction" act. If the rights owner's consent or authorization has not been obtained, it may still be possible to argue "fair use" if the download is for personal or family use, involves only a small amount, and does not adversely affect the music product market. However, if the music is reproduced onto CDs for resale, this clearly exceeds the scope of "fair use" and violates the Copyright Act's provision on unauthorized "reproduction" of another's work.
Additionally, if the downloaded music is uploaded to a website and made available for download for a fee, it constitutes an infringement of the "public transmission" right, and the infringer may be subject to imprisonment for up to three years, detention, or a fine of up to NT$750,000, or both.
With the advancement of technology, the circulation and access to various works have become much easier. Do not be tempted by small profits to infringe upon others' copyrights, as this may lead to both civil and criminal liability.
Moreover, with the rapid emergence of music streaming platforms and the significant reduction in costs, music enthusiasts should obtain and enjoy audio-visual works through legal channels. Not only will this ensure peace of mind, but it will also spare them from potential legal troubles, which is the wise choice!
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