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Cablegate: Taiwan Ipr: 301 Watch List Ocr Update Three

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PP RUEHCN RUEHGH RUEHVC
DE RUEHIN #1318/01 2480859
ZNR UUUUU ZZH
P 040859Z SEP 08
FM AIT TAIPEI
TO RUEHC/SECSTATE WASHDC PRIORITY 9894
INFO RUEHOO/CHINA POSTS COLLECTIVE
RUCPDOC/DEPT OF COMMERCE WASHDC
RHMFIUU/DEPT OF JUSTICE WASHINGTON DC

UNCLAS SECTION 01 OF 02 TAIPEI 001318

SIPDIS

STATE FOR EAP/TC
STATE PASS USTR FOR KATZ AND RAGLAND
COMMERCE FOR 4431/ITA/MAC/AP/OPB/TAIWAN
COMMERCE ALSO FOR ITA/MAC/OIPR,
COMMERCE PASS TO USPTO GIN, BROWNING, AND LOC STEPP
USDOJ FOR JOHN ZACHARIA

E.O. 12958: N/A
TAGS: ECON ETRD KIPR PREL PGOV TW
SUBJECT: Taiwan IPR: 301 Watch List OCR Update Three

Reftels: A) Secstate 43143, B) Taipei 950, C) Taipei 1039, D)
Taipei 0008, E) Taipei 1258

1. (SBU) Summary: Taiwan has now made measurable progress on all
three areas outlined in May's Special 301 Watch List submission for
Taiwan (ref A). Following the July opening of the Intellectual
Property (IP) Court (ref B) and ongoing actions under the Campus IP
Action Plan, the Taiwan Intellectual Property Office (TIPO)
forwarded to the Executive Yuan (EY) on August 27 a draft version of
internet service provider (ISP) amendments to Taiwan's Copyright
Act. TIPO predicts that the EY will approve this version of the
bill and send it to the Legislative Yuan for consideration by the
end of September. The Ministry of Education continues to engage with
rights-holder groups, and has affirmed that the Ministry's
island-wide academic network TANet would be treated as an ISP under
the current draft version of the ISP bill. We have asked Taiwan
officials to provide assurances of support for passage of the bill
in its current form. We will also continue to monitor and encourage
support for the bill until its passage. Given progress to date and
prospects for passage of acceptable, if not ideal, ISP legislation,
we recommend that Taiwan be removed from the 301 Watch List. End
summary.

---------------------------------------------
ISP Bill Moving Closer to Goal Line
---------------------------------------------

2. (SBU) On August 27, TIPO sent to the EY its final draft version
of ISP-related amendments to the Copyright Act. According to TIPO
Deputy Director General Margaret Chen, TIPO expects the EY to
approve the draft amendments in September, and forward the draft on
to the Legislative Yuan (LY) for approval soon afterwards. Chen
does not know when the LY will take a vote on the amendments,
however, nor could she forecast whether the LY would pass the
amendments. [Note: The LY's fall session started on September 1 and
wraps up end-December. End note.]

3. (SBU) The latest version of the ISP-related amendments does not
include U.S.-suggested language included in Article 88 of previous
versions that specifically referred to secondary (or contributory)
liability for ISPs that knowingly host copyright-infringing
material. Instead, the bill includes a written opinion from the
Ministry of Justice stating ISP operators are subject to secondary
liability under Article 185 of the Civil Code. On September 2,
local rights-holder groups reaffirmed to econoff that they would
prefer to have the concept of secondary liability clearly laid out
in the bill, but can accept the amendment's current wording. Some
rights-holder groups have also told AIT that after TIPO submits the
bill to the LY, a KMT Legislator will add language related to
secondary liability back into the amendment (ref C). The bill also
does not reflect U.S. recommendations that ISPs should be liable for
infringing material that they "should have knowledge" of, not just
for infringing material that they "have knowledge" of, though local
rights-holder groups have not pushed AIT to address this issue.

------------------------- ------------------------------
MOE Action Plan Improves, Rights-holders Still Concerned
------------------------- ------------------------------

4. (SBU) During an August 19 meeting with Ministry of Education
(MOE) Computer Center Deputy Director Han Shan-min, Ms. Han updated
econoff on the continuing work of the MOE under its Campus IP Action
Plan. Following a baseline survey made in June 2007 on network
management practices at 16 universities, the Computer Center is
undertaking another survey of 10 schools to evaluate their
enforcement efforts after the Action Plan's first year. The MOE
will compile the results of this survey by the end of September, and
use these results as the basis of a new enforcement report with more
detailed indicators in October or November.

5. (SBU) The MOE has also increased feedback to rights-holders under
the Action Plan. In response to rights-holder requests--and AIT
encouragement--the Computer Center instituted a new SOP for
rights-holder complaints, designating a staff member as the
complaints point-of-contact (POC) and producing more detailed,
bi-monthly reports on reported infringements. The last such report
came out on August 21. Han also informed econoff that on May 8, the
MOE ordered all universities to block installation of peer-to-peer
(P2P) software on all publicly-available terminals, as well as make
periodic checks for such software. This move is a tightening of
restrictions implemented by the MOE in fall 2007 that curbed student
access to P2P websites and software (ref D).

6. (SBU) In addition, although the MOE had been wary of classifying

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TANet as a normal ISP, Han said that the MOE now agrees that TANet
meets the ISP definition included in the draft Copyright Law
amendments that TIPO passed to the EY last week. TANet
administrators at Taiwan's schools would therefore be subject to the
revised law's notice and takedown requirements. Han said if the EY
passes the current version of the amendments, the MOE would work out
enforcement rules for this purpose, and work with individual
universities to implement notice-and-takedown measures.

7. (SBU) Local rights-holder groups, however, told econoff on
September 2 that they remain worried that the MOE may try to have
the LY reinsert language that would exempt TANet from the bill's
provisions. Rights-holder also told econoff they are still not
satisfied with the MOE's efforts under the Action Plan. According
to Robin Lee of the recording-industry group IFPI, the MOE's new,
bi-monthly reports do provide general information and statistics
about how infringement complaints are being handled by individual
universities, but the reports do not provide specific feedback about
how each complaint is being handled or punished, rendering the
reports "almost useless." Representatives from the software, movie,
and book-publishing rights-holder groups agree with Lee that
although the MOE has designated an infringement-complaints POC, the
Ministry does not have adequate staff to address the industry's
problems on TANet. Rights-holders told econoff that they have asked
MOE to establish an enforcement group within the Computer Center.

-----------------------------
IP Court Has Slow First Month
-----------------------------

8. (SBU) Opened with fanfare on July 1 (ref B), the Taiwan
Intellectual Property Court had a lower-than-expected caseload
during it first two months. IP Court President Kao Shiow-jen
recently told econoff the IP court has received only 146 cases,
mostly criminal appeals and administrative cases, none of which have
reached the trial stage. Kao said the IP Court is disappointed by
the low number of cases received, especially first-instance civil
cases, since the Judicial Yuan (JY) estimates the Court is able to
handle about 250 cases per month. Kao explained many plaintiffs in
civil cases are still watching and considering whether to use this
new venue, or file their cases as before in a district court. Kao
believes that more plaintiffs will take their civil complaints
directly to the IP court when they realize the Court's judges can
effectively and correctly enforce Taiwan's patent, trademark, and
copyright laws.

-------
Comment
-------

9. (SBU) We assess that Taiwan continues to make measurable progress
on the key areas outlined by the U.S. in this year's Special 301
Watch List submission for Taiwan. As we noted in ref C, the main
remaining issue is Taiwan's progress toward passing an acceptable
version of the ISP amendment. Rights-holder groups, ISPs, and
web-portal operators all tell us that they can live with the
amendment's current wording, although rights-holder groups would
prefer that the final version include "Article 88" language clearly
referencing secondary liability, and also worry that the MOE may try
to have language reinserted into the bill that would exempt TANet
from its requirements. We have already requested a written
expression of support for the bill's passage (ref E), and we will
follow up with EY officials to encourage Taiwan to pass as strong a
bill as possible. If MOEA continues to support the bill's passage
in its current form, we recommend that Taiwan be removed from the
301 Watch List at the end of the out-of-cycle review. End comment.

© Scoop Media

 
 
 
 
 
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