Taiwan IPR: 2009 301 Watch List Submission

UNCLAS SECTION 01 OF 05 TAIPEI 000212 SENSITIVE STATE FOR EAP/RSP/TC, EAP/EP STATE PLEASE PASS USTR USTR FOR RAGLAND AND ALTBACH USDOC FOR 4430/ITA/MAC/AP/OPB/TAIWAN USDOC ALSO FOR ITA/MAC/OIPR USDOC FOR USPTO GIN, BROWNING, AND SNYDOR SIPDIS E.O. 12958: N/A TAGS: ECON ETRD KIPR TW SUBJECT: Taiwan IPR: 2009 301 Watch List Submission REFTEL: A) Taipei 26 B) 2008 Taipei 49 C) 2008 Taipei 1655 D) 2007 Taipei 2442 E) 2007 Taipei 2498 F) 2008 Taipei 950 Overall Assessment -------------- ¶1. (SBU) The Taiwan authorities continued to strengthen intellectual property rights (IPR) enforcement over the past 12 months. The long-awaited specialized IP Court started accepting cases in July 2008, and by year's end had a caseload of 694 cases. The Taiwan Intellectual Property Office (TIPO) finalized ISP-related amendments to the Copyright Law. TIPO also took steps to address EU concerns about Taiwan's use of compulsory licenses, but did not submit an amended Patent Act to the LY before the end of the 2008 session. Taiwan's Ministry of Education (MOE) increased efforts to reduce electronic piracy and textbook copying on university campuses, and schools are more closely tracking and punishing violations. ¶2. (SBU) However, problems remain. Although physical copying of movies and music continued a decade-long fall, digital piracy of music, movies, and software continues to be a problem. The EY sent to the LY an amendment to the Copyright Law that would have limited an Internet service provider's (ISP) liability if the ISP quickly removed IPR-infringing material, but the LY was not able to complete the process of approval before the end of the 2008 winter session. Although Taiwan's software piracy rate held steady at 41 percent--third-best in Asia behind Japan and Singapore--some software companies' representatives believe that the actual rate is significantly higher. Rights-holders continue to complain that Taiwan Customs remains the weak link in Taiwan's improving efforts against piracy. ¶3. (SBU) Overall, due to Taiwan's steadily improving IPR environment, AIT does not believe that Taiwan should be included on the 2009 Watch List. In 2009, we will encourage Taiwan to demonstrate continued commitment to IPR enforcement by passing the ISP amendment, finalizing amendments to the Patent Act that address industry concerns on compulsory licensing, and continuing to combat digital and textbook piracy on university campuses. End overall assessment. -------------- Ongoing Areas of Review -------------- Notorious Markets -------------- ¶4. (SBU) Piracy in Taiwan's night markets has declined over the past decade, and there are no "notorious" physical markets. In 2008, several stalls in the Hsin-Ming night market in Taoyuan County began offering free pirated CDs, DVDs, and computer games in exchange for a "suggested" donation to the stalls' operators. The ambiguous legal status of the stall owners' actions initially slowed law enforcement reaction to the pirating, but by the end of 2008, Intellectual Property (IP) Police raids shut the scheme down. Optical Media -------------- ¶5. (SBU) According to the Recording Industry Foundation in Taiwan (RIT),which represents the international recording industry, as legitimate CD sales in Taiwan have dropped by half over the past five years, the percentage of pirated copies has fallen from 36 percent of all copies sold to 22 percent. RIT estimates that the number of physical outlets for pirated CDs has also fallen to fewer than 20 night market stalls island-wide, down from about 30 in 2007 and some 250 a decade ago, and that this kind of physical piracy is under control. Other rights-holder groups agree that large-scale production and distribution of physically-pirated goods is declining. ¶6. (SBU) According to RIT, the Taiwan police initiated 90 music-related physical piracy cases in Taiwan in 2008, down from 136 in 2007 and 227 in 2006. Rights-holder groups believe that most domestic physical movie counterfeiting is now individuals burning counterfeit DVDs on home computers, with the majority of pirated TAIPEI 00000212 002 OF 005 DVDs coming from the PRC and other overseas mail-order sites that take orders over the Internet and deliver physical copies by mail (ref A) Digital Piracy -------------- ¶7. (SBU) In June 2007, Taiwan passed legislation providing a legal basis for prosecuting online peer-to-peer platforms whose service allows for the exchange of IPR-infringing materials, and by the end of 2007, the authorities had shut down the two largest P2P service providers in Taiwan (ref B). In 2008, the MOE issued increasingly strict Internet guidance to universities, including new rules forbidding all peer-to-peer (P2P) software use except with explicit permission, requiring daily bandwidth limits, and monitoring download volume per student (ref C). ¶8. (SBU) In September 2008, the Taiwan Intellectual Property Office (TIPO) finalized a proposed amendment to the Copyright Law that would limit an ISP's liability if the provider quickly removed IPR-infringing material. In September, the EY approved the draft amendments, and forwarded the draft to the LY for approval. However, the 2008 LY session ended before the amendment could become law. According to TIPO, the LY will debate passage of the proposed amendment during the first session of 2009, and we expect the bill to be approved by mid-year. (ref A). ¶9. (SBU) Although digital piracy of music and movies remains the number one concern for movie and music industry groups, industry statistics show rights holders are becoming more effective at enforcing intellectual property rights. In 2008, RIT members sent more than 1000 "Cease and Desist" letters asking major Internet service providers (ISPs) and auction sites to remove unauthorized music content, with a 91-precent success rate in having the ISP remove the offending content. RIT members averaged 1250 such letters in 2006 and 2007, with a take-down rate of only 80 percent. ¶10. (SBU) Digital piracy prosecutions are also falling. According to RIT statistics, Taiwan prosecuted 122 music-related digital piracy cases in 2008, down from 265 cases in 2007. RIT's Alex Chen attributes the drop to more successful notice-and-takedown efforts by the recording industry, a greater awareness of intellectual property among the general public, and the increasing availability of legitimate music online. Chen noted, however, that RIT does not believe digital piracy itself is dropping, only that industry is getting better at identifying and taking action against websites hosting copyrighted material. Software, Including Use and Procurement by Authorities -------------- -------------- ¶11. (SBU) According to the latest Business Software Alliance (BSA) surveys, 40 percent of member-company software used in Taiwan in 2007 was unauthorized. This is a one percentage-point drop from the 2006 figure, and places Taiwan third-best in Asia--behind only Japan and Singapore--and 23rd worldwide. ¶12. (SBU) The true picture of software piracy is likely worse, however (ref A). In a recent meeting, BSA's Taiwan office head told econoff that BSA's survey methodology undercounts the level of unauthorized use, including illegal copies, expired licenses, and under-reporting of licensed users, and software company representatives privately estimate to us that 70 to 90 percent of business software in Taiwan is unauthorized. According to rights-holders, such unauthorized use of software is common not only in the business community, but also on university campuses and within official agencies. TRIPS Compliance and Other IPR Issues -------------- ¶13. (SBU) In January 2008, the EU completed a Trade Barriers Regulation (TBR) investigation into Taiwan's 2006 decision to issue a compulsory license to local company Gigastorage to produce CDs using Philips' licensed technology (ref D). The EU report concluded Taiwan's Patent Law is inconsistent with WTO rules on intellectual property, and recommended that the European Commission start WTO proceedings if Taiwan did not take concrete steps to amend its Patent Law within two months. ¶14. (SBU) In response, TIPO began drafting amendments to the Patent Act. Although the changes would address some of the EU's concerns, Philips is worried about several other changes the bill would bring TAIPEI 00000212 003 OF 005 to the compulsory license regime, including unclear guidance on what constitutes patent abuse, provisions that would allow the use of a compulsory license to produce for export, and an inadequate appeal mechanism for the patent holder (ref A). ¶15. (SBU) Fortunately, however, TIPO was not able to complete the text of the amendments before the 2008 LY session ended in January ¶2009. We will continue to track the proposed amendments, and will seek to ensure TIPO gives industry adequate time to understand and comment on the proposed changes and make comments on the changes. Data Protection -------------- ¶16. (U) Taiwan has three laws that cover data protection: the Personal Data Protection Law, the Trade Secrets Act, and the Integrated Circuit Layout Protection Act. AIT has heard no complaints from industry about problems with data protection in Taiwan. ¶17. (SBU) Since 2006, Taiwan's Pharmaceutical Law has provided drug companies five years of data exclusivity for new drugs. This coverage is limited to chemical entity products and does not cover new indications. The Law allows competitors to refer to the originators' data and submit generic filings three years after the originator gains market approval, and requires drug companies to register a new product in Taiwan within three years of the product's release in an advanced-country market. Although the Taiwan Department of Health has expressed interest in setting up a system of patent linkage in the regulatory procedures for approving generics, Taiwan has no plans to implement a U.S.-style patent linkage system (ref E). Production, Import and Export of Counterfeit Goods -------------- -------------- ¶18. (SBU) Most large-scale pirating of optical media, software, and clothing has shifted to other locations in Asia. Since 2002, enforcement authorities have increased the frequency and effectiveness of raids against night markets and large-scale optical media factories, significantly reducing the number of pirated products for retail sale. In response, over the past few years, IP pirates have shifted from large optical media plants to small, custom optical-media burning operations, often for home delivery and sale over the Internet, or have shifted production overseas. ¶19. (SBU) Trademark infringement, including fake cigarettes, clothing, handbags, watches, and footwear, is also an area of concern in Taiwan, but cases and arrests declined in 2008. In 2008, police filed 873 cases involving trademark infringement, down 27 percent from 2007, and arrested 958 suspects, down 25 percent from ¶2007. ¶20. (U) Taiwan Customs reported that the number of seizures of counterfeit branded goods decreased in 2008 to 226 cases from 300 in 2007, and Taiwan Customs impounded only 1,104,557 items in 2007, compared to 4,446,506 items in 2007. Counterfeit cigarettes accounted for 85 percent of seized goods, car parts for six percent, and clothes, medicines, and leather products for about one percent each. ¶21. (SBU) Taiwan Customs had only four cases of export commodities found to infringe trademarks, though the 57,626 trademark-violating export goods seized in these cases were a 647-percent increase from the 7707 items seized in 2007. Under its Optical Disk Law, Taiwan routinely inspects exports of disks and disk manufacturing equipment. In 2008, Customs found only 31 illegal export cases involving optical disks, none of which were disks suspected of violating copyrights. Instead, all 31 cases involved only false declarations of export quantity. ¶22. (SBU) The International Research-based Pharmaceutical Manufacturers' Association (IRPMA),the original-drug manufacturers' industry group in Taiwan, remains concerned about counterfeit drugs, but in its 2009 Policy Priority Paper, IRPMA again ranks the issue far below other IPR issues such as patent linkage and data exclusivity. Enforcement: Police and Courts Good, Sentences Light -------------- -------------- ¶23. (U) Taiwan's Joint Optical Disk Enforcement (JODE) Task Force conducted 916 inspections of optical disk manufacturers in TAIPEI 00000212 004 OF 005 2008--over half at night--and for the third year in a row found no violations of Taiwan law. ¶24. (U) In 2008, the IPR Police conducted five percent fewer raids (6275) than in 2007, began seven percent fewer infringement cases, and made 18 percent fewer arrests. The IP Police's efforts show the increasingly digital nature of piracy in Taiwan: while seizures of all other major counterfeit good categories declined in 2008 compared to 2007, seizures of pirated music, movie, and software/video game disks were up 126 percent, 40 percent, and four percent, respectively. ¶25. (SBU) Very few successful IPR-related prosecutions, however, result in jail time for the violators. In 2008, Taiwan courts handed down 2,497 sentences for IPR-related crimes, and 2330 (93 percent) were fines or short jail terms that are almost automatically converted into fines. In 2007, Taiwan courts handed down 2,434 sentences for IPR-related crimes, and 2069 (85 percent) were fines or short jail terms. ¶26. (SBU) The long-awaited specialized IP Court started accepting cases in July 2008 (ref F),and by year's end had received 694 cases, and closed out 364 of them. The Court accepts first-instance and appeals civil and administrative cases, as well as criminal case appeals. BSA and other rights-holder groups, while encouraged by the Court's establishment, are pessimistic that the IP Court will noticeably improve IPR-related prosecutions due to limited resources. Other AIT industry and Ministry of Justice (MOJ) contacts, however, praise the Court for its knowledgeable experts, and note the IP Court is handling cases faster than non-specialized courts (ref A). ¶27. (SBU) Rights-holder groups complain that--due to a loophole in Taiwan's Copyright Law--clearly counterfeit goods seized during investigations may be returned to defendants if the investigation does not end in an indictment. In early 2008, TIPO completed a draft amendment to the Copyright Law in order to close this loophole, but did not send the bill to the LY for consideration. Instead, acting on the advice of TIPO and the IP Police, the Ministry of Justice (MOJ) issued island-wide guidance in April ordering prosecutors to encourage arrestees to sign away rights to the return of their seized goods. ¶28. (SBU) Movie, music, and software rights holders--along with pharmaceutical companies--continue to complain that Taiwan Customs is a weak link in Taiwan's relatively good efforts against piracy (ref A). Industry representatives tell us a significant amount of pharmaceuticals, music, and movies is commonly smuggled into Taiwan by mail-order in small batches--usually from China, but also from South East Asia--but Customs officials do not seem willing to spend time seizing these smaller quantities of counterfeits. Rights holders attribute this reluctance to Customs officers wanting to avoid the large amount of paper work required for even relatively small seizures, as well as a lack of manpower available for follow-up investigations. ¶29. (SBU) Changes to the copyright law in 2004 allowed for ex officio inspections by Taiwan Customs, but the law requires rights holders to verify within a short period that the seized materials are counterfeit. Although TFACT and other rights holders report to us they routinely send personnel to Taoyuan International Airport and other ports of entry to verify the authenticity of suspect parcels, Customs tells us some rights holders are not responsive to requests to verify suspect trademark violations. Campus Anti-Piracy Efforts -------------- ¶30. (SBU) In 2008, the Taiwan Ministry of Education (MOE) continued the Campus IP Action Plan that it launched in October 2007 to combat IPR violations on campuses. Over 2008, the MOE issued increasingly strict guidance for Taiwan Academic Network (TANet),the Ministry's island-wide high-school and university intranet, including new rules forbidding all peer-to-peer (P2P) software use except with explicit permission, requiring daily bandwidth limits, and monitoring download volume per student. School administrators uniformly report they are more aggressively monitoring illegal downloads on TANet, shutting down campus access to the most notorious P2P websites, and increasing IP-protection coordination across departments (ref C). ¶31. (SBU) The Action Plan also targets illegal textbook copying, and university administrators tell us on-campus copying of textbooks is less rampant and less visible in Taiwan year over year, especially TAIPEI 00000212 005 OF 005 at on-campus copy shops. They also report off-campus copy shops are either more reluctant to copy textbooks in whole or in part, or have begun to refuse to copy more than a few pages of any one book (ref C). ¶32. (SBU) The Taiwan Book Publishers' Association (TBPA),however, complains that the problem has merely gone underground, and has collected strong, though indirect, evidence to bolster its claims of continuing copyright violations on Taiwan's campuses. TBPA believes shops still take orders through representatives on campus and standing student relationships, then deliver books directly to customers. Treaties -------------- ¶33. (U) Taiwan is not a member of the UN and is therefore not a signatory to the 1996 WIPO Copyright Treaty (WCT) or the WIPO Performances and Phonograms Treaty (WPPT). However, Taiwan abides by the terms of the both treaties. Comment -------------- ¶34. (SBU) Taiwan made significant progress in addressing the outstanding IPR problems identified in last year's report, and as a result, in January 2009, USTR removed Taiwan from the 301 Watch List after an out-of-cycle review. We assess that the Taiwan authorities will continue to support effective IPR policies, and will maintain their current efforts, including under the IP Action Plan to reduce piracy on campuses. We will, however, continue to press Taiwan to pass the ISP amendment, finalize amendments to the Patent Act that address industry concerns on compulsory licensing, and continue to combat digital and textbook piracy on university campuses. Wang