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Is it legal to use network file swapping or (peer-to-peer; P2P) software to download audiovisual works of others? What legal penalties may be imposed?


When ordinary citizens engaging in swapping audio/visual files via software or platforms provided by software firms download the files onto the hard drives of their personal computers without licensing by the copyright owners or burn them, they are reproducing works of others. If it is merely for their personal or home use, it is considered fair use if they are downloading just a small quantity and are not adversely affecting sales in the market for audio/visual goods. Although such behavior does not constitute infringement of economic rights if it remains within the scope of fair use, as soon as it extends beyond the scope of fair use, it becomes infringement of reproduction rights.

Using software provided by software firms to swap music not only involves the above issues of downloading (reproducing), but also involves making copyrighted files stored on one's own computer available for downloading by other Internet users. This act of "making available to the public" constitutes "public transmission" under the Copyright Act. Unless "fair use" standards are met, it is an illegal act if done without first obtaining consent or licensing from the copyright owner. Publicly transmitting works of others over the Internet has far-reaching effects and ramifications, and it can easily constitute infringement, as the scope of permissible "fair use" is very limited.



What is "electronic rights management information"? What new provisions have been made in the Copyright Act?



"Electronic rights management information" means information concerning the rights attached to a work, such as the name of the work, the identity of the author, who enjoys the economic rights and who is entitled to use the work, whom others interested in using the work should contact about obtaining licensing, and so forth. Users ("exploiters") can use electronic rights management information to learn how they can lawfully exploit a work. Economic rights owners can use electronic rights management information to inform others of the status of their rights and to provide legal channels for licensing.

Electronic rights management information is labeled and processed in electronic form for the digital environment of the internet, so that it can be easily obtained by others and quickly transmitted and circulated. When electronic rights management information labeled on works by copyright owners is falsified by others who modify or tamper with it, the consequences are far-reaching: the rights of the copyright owner are impaired, the order of the overall market for works is disrupted and damaged, and users at large are left unable to obtain lawful licensing through proper channels.

To ensure normal development of markets for works on the Internet, an amendment to the R.O.C. Copyright Act was passed on July 9, 2003 incorporating protections for electronic rights management information and prohibiting unauthorized modification or deletion of such information, to be in line with international conventions. It likewise prohibits second-hand transmission of works whose information has been modified or deleted.


 Someone has infringed my economic rights. What action can I take?


As a copyright owner, you are entitled to take the following steps under civil law:
(1) You may demand removal of the infringement. If there is a likelihood of infringement, you may demand that the infringement be prevented. (Copyright Act, Article 84) 
(2) You may demand compensation (for damages). 
(3) You may request the destruction or other necessary disposition of goods produced as a result of the infringing act, or of articles used predominantly for the commission of infringing acts. (Copyright Act, Article 88-1)

You are also entitled to pursue criminal prosecution by filing a complaint with the prosecutor or a private prosecution with the court.