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A Study on the Relation between the Copyright Law and the Fair Trade Law


The Copyright Law is enacted not only to protect the right of the author but also to strike a balance between the private and public interests. In order to give the author an incentive to create, the law provides for him with an exclusive right to prevent others from copying without authorization. However, there is a possibility that the author abuses his right, and as a result, the competition mechanism is greatly influenced. Therefore, to some extent the ownership and exercise of copyright might be deemed kind of a monopoly in the Fair Trade Law.

The goal of the Fair Trade Law is to maintain a fair and competitive market. Considering the potential conflicts between the Copyright Law and the Fair Trade Law, we thoroughly explore some of the issues the Fair Trade Commission is faced with. The relationship of the Copyright Law and the Fair Trade Law is discussed at first. And then we separately deal with these important issues, including the rate issue between the copyright collective and its users, the tying of the copyrighted objects and unfair competition, the exercise of copyright and the warning letter, database copying, technical protection measures, and the conducts of joint broadcast.

Chapter 1 is about the rate issue between the copyright collective and its users. The rate issue was originally administered by the Intellectual Property Office. But after the revision of the Copyright Law in 2001, the issue was thought to be solved through market mechanism. However, if the copyright collective abuses its market power to set an unreasonable royalty, it opens the door for the Fair Trade Commission to enter.

American and German law provides that copyright collectives have the obligation to set a reasonable royalty, and they have to assume the burden of proof consequently. However, there is no such law in Chinese Taipei. From the legislative perspective, it seems inappropriate for the Fair Trade Commission to deal with this issue, which ought to be under the supervision of a peculiar and professional institution, in light of the nature or characteristics of the copyright collective. But we still conclude several principles so that the Fair Trade Commission can refer to when deciding the reasonableness of royalty.

Chapter 2 focuses on the tying of copyrighted objects. The Fair Trade Law should apply when the tying influences the competition mechanism. After the revision of the Fair Trade Law, tying is regulated under both the antitrust and unfair competition. Although it is very special at the first sight when compared with the laws in other countries, we come to know that tying is mainly dealt with antitrust law, but that does not exclude the application of unfair competition law. That is, both antitrust and unfair competition can apply to the conducts of tying. Therefore, the Fair Trade Commission should not neglect the dimension of unfair competition.

What is more important, although the Fair Trade Commission usually emphasize the characteristics of copyrighted objects to strengthen its explanation on market power, we have to emphasize that ownership of copyright does not necessarily mean market power. In other words, the exclusiveness of copyright makes the author gain market power easily, but the exclusiveness does not equal market power definitely.

When it comes to Chapter 3, we know that it is the right of an intellectual property right holder to send a letter to warn others not to infringe on its rights or the civil and criminal lawsuits will be filed. However, some right holders use this method to exclude competition, while others without any right even send letters to claim their “right ” in other cases.

It happens frequently in recent years and has a great influence on competition. In 1997, the Fair Trade Commission establishes a guideline for dealing with the issues about the warning letters sent by intellectual property right holders. Because the guideline is designed in view of patent in particular, there are some problems when applied to copyright.

In theory, there are many differences between copyright and patent. The exclusiveness of copyright intensifies as the Copyright Law confers criminal protection to copyright. Moreover, one does not have to register for copyright protection, so when he sends a warning letter, it is still in doubt whether he has copyright or not. Accordingly, we believe that the exercise of copyright should be under stricter supervision than that of patent. In addition, many issues are illustrated and analyzed in detail .

From Chapter 4 to Chapter 6, the issues about database copying, technical protection measures, and the conducts of joint broadcast are briefly outlined from the perspective of both the Copyright Law and the Fair Trade Law.

After analyzing above-mentioned issues comprehensively, we can have a clear understanding about the relationship between the Copyright Law and the Fair Trade Law. The Fair Trade Commission can refer to the suggestions we make when dealing with similar issues in the future.

Updated at:2008-12-19 07:44:37