原住民族傳統智慧創作保護條例

1(Legislative Purpose)

2In order to protect the traditional intellectual creations of indigenous peoples (hereinafter referred to as “Intellectual Creations”), and to promote the cultural development of indigenous peoples, this Act is set forth according to Article 13 of The Indigenous Peoples Basic Law.

1(Competent Authority)

2The competent authority referred to herein shall mean the Council of Indigenous Peoples.

1(Definition of Intellectual Creations)

2The intellectual creations referred to in this Act shall mean traditional religious ceremonies, music, dance, songs, sculptures, weaving, patterns, clothing, folk crafts or any other expression of the cultural achievements of indigenous peoples.

1(Recognition Registration)

2Intellectual creations shall be recognized by and registered with the competent authority so as to be protected by the Act. The criteria for recognizing intellectual creations mentioned in the previous paragraph shall be determined by the competent authority.

1(Recruitment of Personnel)

2The competent authority shall recruit (assign) personnel of related institutions, specialists, scholars and aboriginal representatives to undertake the recognition of intellectual creations in addition to any matters stipulated in other regulations. At least 50% of these personnel shall be drawn from aboriginal representatives.

1(Documents Required for Registration Application and Selection of Representatives)

2The applicant for any intellectual creation shall provide a written application, a specification, necessary graphics, images and related documents or provide audio-visual creations in order to apply for registration with the competent authority.

3The applicant mentioned in the previous paragraph is limited to aboriginal groups or tribes and a representative shall be elected to take care of all matters arising. The regulations of electing representatives shall be determined by the competent authority.

1(Obtaining Exclusive Rights to Use Intellectual Creations)

2Upon being recognized as intellectual creations, the exclusive right to use such intellectual creations shall be obtained according to the following rules:

31. Once the applicant is confirmed to be the owner of an intellectual creation, registration shall be approved. And starting from the date of registration, the applicant shall obtain the exclusive right to use such intellectual creations.

42. If an intellectual creation is confirmed to belong to the applicant and other specific aboriginal groups or tribes, the applicant and other specific aboriginal groups or tribes shall jointly obtain the exclusive right to use the intellectual creation starting from the date of registration.

53. If an intellectual creation cannot be confirmed to belong to any specific aboriginal group or tribe, the rights shall be registered under the entire indigenous peoples. The entire indigenous peoples will obtain the exclusive right to use such intellectual creation starting from the date of registration.

1(Registration Modification)

2In the event of change to the name of the owner of an exclusive right to use intellectual creations, application to modify registration is required.

1(Notification of Intellectual Creations and the Issuance of Certificates and Certification Marks)

2For intellectual creations, registries shall be established by the competent authority and notices shall be issued.

3Any creation recognized as an intellectual creation by the competent authority according to Article 7 and approved for registration shall be published in the government gazette and made public on the Internet.

4The competent authority shall issue an intellectual creation exclusive user certificate and certification marks.

5The regulations of application and registration of intellectual creations, issuance, reissuance, annulment, and grant of certification marks, cancellation and revocation shall be decided by the competent authority.

1(Definition of the Exclusive Right to Use Intellectual Creations)

2The exclusive right to use intellectual creations shall mean the property rights and moral rights of intellectual creations.

3The owner of an exclusive right to use intellectual creations enjoys the following moral rights of intellectual creations:

41. the moral right to publicly release the work.

52. the moral right to indicate the name of the exclusive user.

63. the moral right to prohibit others from distorting, mutilating, modifying, or otherwise changing the content, form, or name of the work, thereby violating the author's reputation.

7The owner of the exclusive right to use intellectual creations shall exclusively use and profit from the property rights of such intellectual creations on behalf of specific ethnic groups, tribes or the entire indigenous peoples, unless otherwise stipulated by law or agreement, and shall exercise the rights mentioned in the previous paragraph.

8Indigenous people themselves are entitled to use and profit from the intellectual creations of ethnic groups, tribes or the entire indigenous peoples and shall not be subject to the limitations stipulated in Article 14.

1(The exclusive right to use intellectual creations shall not be assigned, mortgaged or be a target of compulsory execution)

2The exclusive right to use intellectual creations shall not be assigned, mortgaged or be a target of compulsory execution.

1(Title to the Exclusive Right to Use Intellectual Creations)

2The exclusive right to use intellectual creations shall not be given up unless with the consent of the competent authority; exclusive rights to use intellectual creations that are given up shall be transferred to the entire group of indigenous peoples.

1(License of Exclusive Right to Use Intellectual Creations and the Effectiveness Thereof)

2An owner of an exclusive right to use intellectual creations can license others to use such creations; the territory, time, content, method of use or other matters pertaining to the license shall be decided according to an agreement between and among the interested parties; portions that are not clearly set forth shall not be considered as part of a license.

3Any exclusive license of the property rights of intellectual creations shall be signed by the concerned parties and be submitted to the competent authority, along with agreements or documents of proof, to apply for registration. No right shall become effective unless registered.

4Any initial license will not be affected by further license of the property rights of intellectual creations by the intellectual property rights owners.

5Non-exclusive licensees shall not sublicense the rights licensed thereto to any third party unless with the rights owner’s consent.

6An exclusive licensee can exercise its rights as a rights owner within the scope authorized by the rights owner. The owner of the exclusive right to use intellectual creations and the indigenous peoples themselves cannot exercise such rights within the scope of the license.

1(Income from the Exclusive Right to Use Intellectual Creations and the Utilization Thereof)

2If the exclusive right to use any intellectual property is obtained by an aboriginal group or tribe according to the provisions in Article 7, subparagraph 1 or subparagraph 2 herein, the income derived there from shall be used to set up a mutual fund benefiting the relevant aboriginal groups or tribes; the income, expenses, method of custody and utilization in connection thereto shall be determined separately by the competent authority.

3If the exclusive right to use intellectual creations is obtained by the indigenous peoples in their entirety, the income derived there from shall be included in the consolidated development fund of the indigenous peoples and be utilized for the purpose of promoting the cultural development of aboriginal groups or tribes.

1(Permanent Protection of the Exclusive Right to Use Intellectual Creations)

2The exclusive right to use intellectual creations shall be protected permanently.

3If the exclusive user of intellectual creations ceases to exist, the protection of the exclusive right thereof shall be deemed to have survived; the exclusive right to use shall instead belong to the entire indigenous peoples.

1(Situations in Which Already Published Intellectual Creations Can be Used)

2In the event of any of the following, published intellectual creations can be used:

31. For non-profit use by individuals or families.

42. For uses required for reporting, criticism, education or research.

53. fair use for other justified purposes.

6Any use as mentioned in the previous paragraph should credit the source. However, such limitation does not apply if the purpose and method of use is unlikely to infringe on the rights of exclusive users and is not in violation of customary practices in society.

1(Remedy for Infringement on the Exclusive Right to Use Intellectual Creations)

2An exclusive user of an intellectual creation may demand removal of infringement of its rights. Where there is likelihood of infringement, a demand may be made to prevent such infringement.

1(Damage Compensation Liability)

2Parties infringing on the exclusive right of intellectual creations willfully or negligently shall be liable for damage compensation. When there is more than one infringer, all infringers shall be held jointly and severally liable.

3The right to make claims as mentioned in the previous paragraph shall be terminated if not exercised within two years after learning of the existence of parties liable for damages and compensation. The same shall apply if not exercised within ten (10) years of infringement.

1(Method of Calculating Damage Compensation)

2When making a claim for damage compensation, the infringed party can calculate damages according to any one of the following methods of calculation:

31. Making claim in accordance with the provisions of Article 216 of the Civil Code ; provided, when the the infringed party is unable to prove damages, its damages can be the difference between the expected profits that can generally be obtained and the profits that can be obtained from exercising the same intellectual creation right after infringement.

42. Claim for the profits of infringers gained through infringement ; provided, when the infringer is unable to prove its cost or necessary expenses, the total revenue derived from the infringement shall be deemed to be its benefit. According to the provision in the previous paragraph, if it is difficult for the infringed party to prove the actual damages incurred thereby, the infringed party can request the courts to grant damage compensation in an amount no less than Fifty Thousand New Taiwan Dollars (NT$50,000) and no more than Three Million New Taiwan Dollars (NT$3,000,000) based on the degree of infringement. If the damaging activity was intentional and the matter serious, the compensation may be increased to Six Million New Taiwan Dollars.

1(Method of Disposal in the Event of Damage to the Exclusive Right to Use of Intellectual Creations)

2In the event of infringement on the exclusive right to use of intellectual creations, the infringed party can request to destroy the infringing articles or undertake other necessary disposition while demanding to publish part or all of the judgment in a newspaper with the fees thereof being borne by the infringing party.

1(Protection of Intellectual Creations of Foreigners)

2If there exists any intellectual creation protection treaties or agreements between the government of the Republic of China and foreign governments, such treaties or agreements shall be followed.

1(The rights obtained hereunder shall not affect the rights obtained by the exclusive right to use intellectual creations or by a third party in accordance with other laws)

2The provisions herein do not affect the rights obtained by an exclusive user of intellectual creations or by a third party in accordance with other laws.

1(Effective Date)

2This Act shall become effective on the date of promulgation.