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I had the opportunity to visit Taiwan in August, where I once (in the last century) served as Director of the Canadian Trade Office in Taipei, aka the Canadian Representative to Taiwan. (The word “Ambassador” cannot and shall not be used for obvious diplomatic reasons). While there I was able to get updated on a couple of interesting developments regarding copyright issues in this bastion of democracy in Asia. One has to do with a longstanding scourge that has faced Taiwan, broadcast and streaming piracy, a problem faced by many countries; the other was how Taiwan is addressing the global problem of dealing with generative AI (artificial intelligence) and its relationship to copyrighted content.
Piracy has and continues to be a problem in many parts of the world, and Taiwan is no exception. The forms of piracy change with changing technologies, and given that Taiwan is a sophisticated, advanced economy, one would not be surprised to learn that the main forms of piracy are also relatively sophisticated. It also faces the challenge of sharing a more or less common language with China and being close and exposed to the machinations of various enterprising pirate operations based in the Mainland. The situation is aggravated by the fact that China does not seem interested in combatting piracy when it is based there but targets users in other jurisdictions.
One of the major forms in which audio-visual content piracy occurs is through sale of ISDs (Illicit Streaming Devices), also referred to by the innocuous descriptor of “set top boxes”, devices that if suitably reconfigured can provide users access to pirated content. As I wrote in a blog post a couple of years ago (“Pirate Streaming Boxes: An Abuse of Legitimate Technology…), legitimate devices, like Kodi boxes, can be reconfigured or adapted with software, altering them to become distribution platforms for pirated content, which is often accessed through codes provided via offshore websites to “subscribers”. Vendors facilitating piracy often feign ignorance of the ultimate use of the devices they are selling (even though they often actively advertise them as offering “free TV’ or “unlimited channels” or something of that nature). In many cases, until a device is actually put to an illegal use, it is difficult to take legal action. Sellers openly marketing ISDs are hard to stop because of the dual-use nature of the boxes and the fact that the providers of the software giving access to the pirated content are often separate entities located offshore.
Singapore and Malaysia are other Asian jurisdictions that have faced the challenge of piracy facilitated through ISDs sold openly in electronics markets. In reforms finally enacted in 2021, Singapore’s Copyright Act was amended to make it illegal to sell set top boxes and associated software applications that offer access to pirated content, or to advertise that they provide access to such content. Taiwan tackled the problem by adding to the definition of “deemed as copyright infringement” an additional provision making it an offence for a person (who has knowledge of pirated content on the internet, and the intent to distribute it to the public), to provide the public with access to computer programs having links to pirated content, or to manufacture, import or sell equipment preloaded with such computer programs, or to direct, assist or provide paths to the public for using such computer programs. A person who undertakes such activity shall be deemed to have the required “intent” when the advertising or other active measures employed by the person “instigates, solicits, incites or persuades” the public to use infringing programs. It is never easy for copyright authorities to get new legislation passed when there are understandable concerns by legislators that too broad a brush will capture non-infringing activity. The Taiwanese legislation was carefully drafted and to date has had some success in reducing (although not entirely eliminating) the open sale of ISDs providing access to infringing content (movies, sports programming, music and television shows) distributed over the internet.
But with each tightening of the law, the bad guys come up with a new workaround. The latest in Taiwan is the “Ubox”, produced in China (of course). UBox is made by Unblocktech (whose name says it all). Uboxes caught the public’s attention in 2021 when several prominent Taiwanese personalities, including the president of a professional basketball league that relies on broadcasting licensing for revenues, were outed for watching the Olympics on a UBox. As with many other ISDs, the UBox itself does not violate the law, but its applications do, which allowed viewers in Taiwan to watch Olympic feeds not authorized for the Taiwan market. UBoxes are difficult for a rights-holder to target with an injunction because the configurations of the apps providing the pirated content keep changing, and so far Taiwanese courts have not permitted dynamic injunctions as a way to combat this. But the publicity given to the consumption of pirated content by prominent Taiwanese figures was noted; local legislators and copyright advocates bemoaned the hit to Taiwan’s reputation. And as Taiwan updates its legislation to prepare for negotiations to join the Comprehensive and Progressive Trans-Pacific Partnership (CPTPP), further efforts are being made to tighten the anti-piracy provisions of the Copyright law. These include making “serious” digital piracy cases (based on extent of reproduction and amount of economic damage) indictable without complaint.
Another topical issue that Taiwan is just beginning to address is the impact of artificial intelligence (AI) on copyright, an issue that is on the agenda of copyright authorities around the world. A key question, one that is being tested in US court proceedings as we speak, is whether ingestion of copyrighted materials to train AI algorithms involves “reproduction” in the sense of the law. The New York Times is reportedly considering suing OpenAI for copyright infringement, given that the output of ChatGPT is seen to compete with content produced by the Times, yet is based on the original reporting and research conducted by the newspaper’s reporters. The potential suit is part of manoeuvering to convince AI companies to license proprietorial databases and content, rather than just scraping if for free from the internet. As the US Copyright Office is doing, the Taiwan Intellectual Property Office will convene experts’ meetings to explore this issue. There is no Text and Data Mining (TDM) exception in Taiwanese law either for “old AI” (data analysis) nor “new AI” (generative AI that creates new content), although it has a “fair use” provision similar to that found in Section 107 of the US Copyright Act. As in any democracy, stakeholders need to be consulted and there will be no speedy resolution.
Meanwhile, Taiwan continues to come under pressure from China on many fronts. Despite economic and political pressure, even attempted intimidation, Taiwan is working hard to develop its own society, values, and approaches to domestic and international challenges. Copyright is but one small piece of this much larger puzzle, but the progressive improvements in Taiwan’s intellectual property framework, while still incomplete, are further evidence that this small island of almost 24 million people is charting its own path in the world, focussed on the needs of the people of Taiwan.
© Hugh Stephens, 2023. All Rights Reserved.
