The Development of Non-Drama TV Programs in Taiwan and the Protection of Intellectual Property Rights
With the advancement of an era of digital content, the industrial structure of the audio-visual content industry has gradually changed. The production and sales channels of audio-visual content have appeared to trend toward diversification. Emerging content channels or new media have replaced traditional TV stations. The transmission speed of digitized content is faster than the traditional media, which has become an output opportunity for the content of Taiwan in the international market. In the field of drama programs, there have been cases of successful global output, and international cooperation and export models have been gradually discovered. By contrast, non-drama TV programs of Taiwan still remain in the traditional production mode in lack of creation of new content or funds, as well as talents for production and international marketing, which leads to a vicious circle of industrial stagnation or even regression.
1. Problems with domestic non-drama TV programs
Funding is the first issue that needs to be resolved. "Due to the lack of money, the only thing that can be done is producing programs that no one wants to watch." Such a condition exists day after day that causes the entire non-drama programs to be depressed, and few people are willing to invest. By contrast, in China or South Korea, the linkage of its variety shows brings about the development of the content industry, and the benefits are amazing. The willingness to spend money on the investment at its initial stage is an essential element of success. However, if there is no successful case, it may not be easy to solely rely on Taiwanese private funds.
As far as the technical level of TV program production is concerned, it is particularly important to modelize TV programs if they are to be exported. The market transaction of international TV program formats has existed for many years, but the object of the transaction is the core content and production process of TV programs, that is, the TV program bible. For non-drama TV programs of our country, if it needs to sum up the core of the program in one sentence, it is not impossible to achieve. However, it still lacks the core content such as the famous tv show "THE Voice" that is sufficient to attract people. In addition, in terms of production, how to edit as well as integrate the stage and supporting design into the shooting so to present attractive programs is the relatively lacking part in TV programs of our country.
As for the cultivation of talents, Taiwan has yet rarely relevant talents who are able to research, develop, and independently write the TV program bible, as well as do marketing. By contrast, China has achieved remarkable results in TV programs in recent years. They have some consultant companies that specialize in writing a TV program bible for production companies. Their R&D personnel record details by following and observing the directors, producers, and photographers, of which the records gradually become a TV program bible. Some talents in China have mastered the art of writing TV program formats. They can even directly disassemble well-known foreign formats and rewrite them as Chinese versions for production, which has achieved success.
2. Overview of international TV program formats
Taking a broad view of the status of foreign TV program formats, it is found that the output of creative development is not in the countries with big entertainment industries such as the United States, the United Kingdom, and France, but in small European countries such as the Netherlands and Israel, which have a large number of output of TV program formats. The Netherlands and Israel are not countries where the television industry is prosperous. However, their TV program output occupies an important position in the global market. Some programs have even produced more than 1,000 episodes in the world, with the output to countries including the United States, China and others. Similar to Taiwan, Netherlandish and Israeli TV programs are also faced with great limitations in production funds due to the small domestic market. However, many TV programs have been created by relying on the novel program content and taking full account of the needs of the international market.
In the international trade market of TV program formats, if you intend to successfully output a program, it not only contains a novel main idea, but also covers production and viewing. The output carrier of TV program formats is the "TV Format Bible". Its content includes various links of program rundown, personnel settings, camera lenses, sound effects and lighting, etc. As long as the program has a fixed existing model, no matter who plays the roles in the program, the quality of the program can be kept stable. This kind of production of non-drama TV programs according to the TV Format Bible is called TV Format.
3. Protection of huge business opportunities of formats: preservation and authorization management of intellectual property rights
The core value of formats often lies in the creative part of the content. How to effectively preserve the creativity and at the same time to claim the rights are of the most concern by ideators, and the carrier of modelizing creation is the "TV Format Bible".
The writing of the "TV Format Bible" is based on the thinking of TV Format structure. At the creative stage, the core content will be integrated into the production level, including how to set up the lighting and the arrangement of the camera to achieve the entertainment effect of the creative core content and other details. However, the value of the "TV Format Bible" comes from the ideation of creativity, and whether creativity is to be protected by law has been controversial since always. Judging from the results of the current judgments on disputed cases concerning the TV Format, the more specific the TV Program Bible is written, the higher chance it has to be protected.
A successful variety show not only can bring about the domestic and foreign income from the show itself, but associated derivatives such as music, tourism, and peripheral products may also be able to obtain huge business opportunities due to the broadcast of the program. Therefore, although the TV Program Format is centered on its content, it actually involves issues of industrial management such as human resources, labor relations, corporate governance, taxation, fundraising, bankruptcy procedures, economic systems, and professional ethics. In addition, in aspects of commerce, marketing and management aspects, matters such as the establishment of the production team, the production process management, the acquisition and use of creation funds, and valuation are all covered in the operation of formats.
Science & Technology Law Institute (STLI), Institute for Information Industry has conducted the survey of “The current status and demand of intellectual property management for Taiwanese enterprises” to listed companies for consecutive four years since 2012. Based on the survey result, three trends of intellectual property management for Taiwanese enterprises have been found and four recommendations have been proposed with detail descriptions as below. Trend 1: Positive Growth in Intellectual Property Awareness and Intellectual Property Dedicated Department/Personnel, Budget and Projects 1.Taiwanese enterprises believe that intellectual property plays an important role 74.18% of Taiwanese enterprises believe that intellectual property can increase economic value and 58.61% of those believe that it can effectively prevent competitors from entering the market. Source: created by project team members Graph 1 The benefit of intellectual property for the company 2.Taiwanese enterprises increase investment in the dedicated department and full time personnel for intellectual property Nearly 80% of listed and OTC companies set up full time personnel for intellectual property and over 50% of those have established dedicated department to handle its business that is higher than 30% in 2012. Source: created by project team members Graph 2 Specialized Department or personnel for intellectual property by year 3.Taiwanese enterprises plan budget for intellectual property each year 81% of respondent companies plan certain budget for intellectual property each year. Among the expenses items, the percentage of 90.95% for intellectual property application is the highest. Next are 58.29% for inventor bonus payment and 56.28% for intellectual property education training. Source: created by project team members Graph 3 Taiwanese enterprises plan budget for intellectual property each year Trend 2: Insufficient Positive Activation for Intellectual Property 1.Interior intellectual property personnel is seldomto be involved in the core decision making in Taiwanese enterprises Based on the importance and difficulty of intellectual property, most items in the area of high importance and difficulty are demand of professionals and practical experiences (e.g.: lack of interior talent, do not understand international technology standard and specification, lack of platform to obtain experiences and cases). Only application time is for administrative procedure of Intellectual Property Offices. Therefore, it is known that intellectual property department of respondent companies lacks experienced talents. Source: created by project team members Graph 4 Importance and difficulty of intellectual property In addition, most of the jobs of intellectual property personnel are “keeping close cooperation and communication with R&D department”, “coordinating issues relevant to intellectual property between departments” and “keeping close cooperation and communication with marketing or sales department” instead of “R&D strategy involvement” and “marketing and operation strategy involvement” (see Graph 5). Therefore, it is demonstrated that the work of intellectual property personnel is mainly for providing coordination and assistance to other departments other than corporate strategy with intellectual property as basis. Maybe it is the reason for insufficient activation and lower investment of intellectual property in the business. Source: created by project team members Graph 5 The job of intellectual property department or personnel 2.Insufficient positive activation for intellectual property in Taiwanese enterprises It is shown that 60% of firms are without and did not obtain technology transfer (among which the traditional manufacturing sector has the highest percentage). 22.95% of firms are without but obtained technology transfer and 4.51% of those are with but did not obtain technology transfer. In addition, most of the jobs of intellectual property are administration other than activation such as treatment of authorization contract and transaction and sending warning letter of infringement. Therefore, it is assumed that intellectual property is not the key for profitability in the business. 3.Taiwanese enterprises with higher R&D expenses ratio intend to have more positive activation of intellectual property Although the entire firms are not positive for activation of intellectual property, it is found that enterprises with higher R&D expenses ratio (the ratio of R&D expenses / total operating expenses is higher than average) intend to have more positive activation of intellectual property. For example, intellectual property department with higher R&D expenses ratio involves more in the decision making of R&D strategy in the business. Compared with the enterprises with higher R&D expenses ratio, the enterprises with lower R&D expenses ratio also has higher ratio in the absence and failure of technology transfer. (see Graph 6) Source: created by project team members Graph 6 Presence and achievement of technology transfer in the different sector 4.Most of Taiwanese enterprises R&D on their own so to lack of introduction experience of external R&D results Among the survey, nearly 90% of firms R&D each item on their own except the copyright part with lower percentage of 78.5%. 15.89% of it is from outsourcing development and 13.08% of it is from authorization. In addition, the outsourcing development and authroization of invention patent part have higher percentage which is 17.34% and 15.61% respectively. However, the speed of self R&D can’t meet the speed of product elimination nowadays. Therefore, under global open competition, corporate may try to cooperate with universities and research institutions to speed up R&D progress. Table 1 Source of Intellectual Property Right Source: created by project team members Further, among the services s that corporate ask for assistance from government, there are high demand for promotion of cooperation between industrial, academic and research sectors as well as assistance provided by academic and research institution to enhance corporate’s R&D ability. Based on this, it is clear established that a smooth access can help enterprises to cooperate with academic and research institutions for R&D instead of doing it on their own. Source: created by project team members Graph 7 The Government Policy for Intellectual Property 5.Taiwanese enterprises focus only on patent and trademark but ignore trade secret and copyright From the intellectual property items enterprises possessed each year, it is found that trademark has the highest percentage (over 80% for four-year average) and next items are invention patent and utility model patent. The awareness that corporates have on intellectual property is only limited to patent and trademark. They overlook that their core ability may be protected by trade secret and copyright. Source: created by project team members Graph 8 Owned IP right Trend 3: Increasing Demand on International Intellectual Property Service 1.The overseas intellectual property risk Taiwanese enterprises faced greatly varies from sectors Among the 2015 survey, 85% of respondent firms developed to overseas. Under which the highest percentage is 79.81% for overseas sale then 56.25% for self-establishment of overseas factory for manufacturing. Furthermore, the percentage of outsourcing in traditional manufacturing sector is the highest than that of other industries which 77.36% of traditional manufacturing firms established overseas factory for manufacturing. The percentage of overseas sale in pharmaceutical and livelihood sector is 91.3% and slightly higher than that in other industries. The result shows that different industry will select different overseas development strategy based on its sector characteristics and R&D difficulty. Source: created by project team members Graph 9 The overseas intellectual property risk As a whole, the highest risk that might be occurred from enterprises developed overseas is leakage of trade secrets. Next risks are 47.12% for being accused of product infringement and 42.31% for patent being registered. Further, the risk control greatly varies from different sector. The risks that industry and commerce service sector regards are quite different from other sectors. For example, its risk of dispute of employee jumping ship or being poached which accounted for 50% is higher than that of other sectors. In addition to the three common risks mentioned above, information and technology sector believes that there might be risk of patent dispute which accounted for 35.29% and is higher than that of other sectors. Source: created by project team members Graph 10 The overseas risk control which might be occurred by enterprises 2.The most dissatisfied part that Taiwanese enterprises have to the intellectual property outsourcing service is insufficient experiences on the treatment of international affairs Based on the 2012 and 2013 data, the too expensive fees is the primary factor that intellectual property outsourcing service didn’t meet the demand. However, from the 2014 and 2015 survey result, the experiences on the treatment of international affairs became the primary factor. It is shown that enterprises increase demand for international intellectual property work but current services from providers can’t satisfy it. From survey data, it is found that different sector has different demand on overseas development. Among which the pharmaceutical and livelihood sector has higher demand on the management of overseas trademark use, investigation of overseas infringement risk, contract of overseas patent authorization, contract of overseas trademark authorization, contract of overseas technology transfer and contract of overseas mutual R&D (See Graph 11). Source: created by project team members Graph 11 The outsourcing professional resources unsatisfied with demand – annual comparision Recommendation 1: Taiwanese enterprises shall build intellectual property creation strategy based on a variety of intecllectual property rights Enterprises may apply for patent, trademark, trade secret and copyright. For instance, brand management can be conducted with trademark and copyright and core technology or service can be protected by patent and trade secret instead of using trademark or patent alone as primary strategy. Recommendation 2: Provide Taiwanese enterprises with assistance of overseas intellectual property consultation 85% of respondent firms have overseas business which greatly varies from different sector so to accompany with different overseas intellectual property risk. Therefore, government may provide enterprises with the information of overseas intellectual property and even real time consultation services of overseas intellectual property risk which is the requirement to be satisfied immediately. In addition, the actual overseas intellectual property demand of enterprises can be found through this introduction of consultation services. To satisfy enterprises’ demand, service providers may need to improve their ability together. Recommendation 3: Build cooperation access of industry, academics and research to assist Taiwanese enterprises to enhance R&D ability Under the fast-evolved and competitive environment, enterprises shall not only depend on their own R&D. Moreover, they shall leverage the R&D result of academic and research institutions to improve so to make subsidy of those institutions from government have real impact on them. Therefore, there is demand of cooperation between industry, academics and research. The cooperation access between them should be built to achieve synergy of R&D. Recommendation 4: Experienced professionals of intellectual property are requried to be cultivated and demand of intellectual property human capital is needed to be expanded for Taiwanese enterprises Enterprises lack of experienced professionals of intellectual property. This demand could be satisfied only through on-the-job training for large personnel other than new graduates of department of intellectual property. Furthermore, enterprises can make department of intellectual property contribute its professional services into R&D and marketing strategy through design of organization work procedure to reduce risk of intellectual property they have to face.Blockchain in Intellectual Property Protection
Background Blockchain is a technology with the ability to decentral and distribute information. It records encrypted information of the user’s behavior. Blockchain has disintermediate, transparency, programmable, autonomous, immutable and anonymous essential features. The first application of blockchain is to develop cryptocurrency and a payment system, Bitcoin, which has overturned traditional concept of the currency model we knew. So far, blockchain has been widely applied in many territories, such as the intellectual property protection system, called the Blockai, which is a website using blockchain to overcome the plight of piracy in the United States. Example The Library of Congress in the United States found that it had been lack of efficiency for the copyright management. Blockai provided a solution for the Library. Authors will benefit from having proof of publication and copyright monitoring by registering with Blockai. The Blockai system securely timestamps copyright claims in the distributed database based on the Bitcoin protocol. For each copyright claim, a proof file is made available through the footer of the certificate and can be verified by authors using this open source proof verification tool, and it is free of charge for everyone. Although the "Proof of Publication" does not constitute admissible evidence in a trial, it is still credible in its technical features. Conclusion In Taiwan, there is still no copyright registering system. Before a copyright infringement suit may be filed in court, the burden of proof is on the copyright owner. For it is difficult for the copyright owner to provide a credible evidence in trial. We may consider using the experiences of other countries for our reference, developing the intellectual property protection system based on blockchain technology in order to help authors preserve their rights, and provide legal services as a legal technology.The Dispute on WTO TRIPS IP Waiver Proposal and the Impact on Taiwan
The Dispute on WTO TRIPS IP Waiver Proposal and the Impact on Taiwan 1. IP Waiver proposal On October 2, 2020, South Africa and India summit a joint proposal (IP/C/W/669) (hereinafter as “first proposal”) for TRIPS council of the World Trade Organization(WTO), titled “Waiver from Certain Provisions of the Trips Agreement for the Prevention, Containment and Treatment of Covid-19”, called for temporary IP waiver of intellectual property in response for Covid-19 pandemic. In first proposal, it supported a waiver from the implementation or application of Sections 1, 4, 5, and 7 of Part II of the TRIPS Agreement in relation to prevention, containment or treatment of COVID-19, which directs to copyright and related rights, industrial designs, patents and protection of undisclosed information. All enforcement measures under part III of the TRIPS agreement such as civil and administrative procedures and remedies, border measures and criminal procedures for protecting aforesaid intellectual property shall also be waived until widespread vaccination is in place globally, and the majority of the world's population has developed immunity. On May 25, 2021, the first proposal was revised (IP/C/W/669/Rev.1, hereinafter as “second proposal”) and resubmitted for WTO by the African Group, The Plurinational State Of Bolivia, Egypt, Eswatini, Fiji, India, Indonesia, Kenya, The Ldc Group, Maldives, Mozambique, Mongolia, Namibia, Pakistan, South Africa, Vanuatu, The Bolivarian Republic Of Venezuela and Zimbabwe. In the second proposal, the scope of IP waiver was revised to be limited to "health products and technologies" used for the prevention, treatment or containment of COVID-19, and the minimum period for IP waiver was 3 years from the date of decision. 2. The Pros and Cons of IP Waiver proposal The IP waiver proposal is currently supported by over 100 WTO members. However, in order to grant the waiver, the unanimous agreement of the WTO's 159 members would be needed, but if no consensus is reached, the waiver might be adopted by the support of three-fourths of the WTO members. The reason for IP waiver mainly focus on the increase of production and accessibility of the vaccines and treatments, since allowing multiple actors to start production sooner would enlarge the manufacturing capacity than concentrate the manufacturing facilities in the hands of a small number of patent holders. Médecins Sans Frontières (MSF) also support IP waiver proposal to prevent the chilling effect of patents as hindrances of the introduction of affordable vaccines and treatment in developing countries, and urges wealthy countries not to block IP waiver to save lives of billions of people. Most opponents against IP waiver proposal are rich countries such as European Union (EU), UK, Japan, Switzerland, Brazil, Norway, Canada, Australia. On May 5, 2021, United States Trade Representative (USTR) announced its support the IP waiver, but only limited into vaccine. EU was the main opponent against IP waiver proposal at the WTO. On June 4, 2021, EU offered an alternative plan to replace IP waiver proposal. Specifically, EU proposed that WTO members should take multilateral trade actions to expand the production of COVID-19 vaccines and treatments, and ensure universal and fair access thereof. EU calls for WTO members to ensure that COVID-19 vaccines, treatments and their components can cross borders freely, and encourage producers to expand their production and provide vaccines with an affordable price. As to IP issues, EU encourages to facilitate the exploitation of existing compulsory licensing systems on TRIPS, especially for vaccine producers without the consent of the patent holder. Many pharmaceutical companies also express dissent opinions against the IP waiver proposal. The International Federation of Pharmaceutical Manufacturers and Associations (IFPMA) indicated that the proposal would let unexperienced manufacturers, which are devoid of essential know-how, join into vaccine supply chains and crowd out the established contractors. The chief patent attorney for Johnson & Johnson pointed out that since the existing of IP rights not only promote the development of safe and effective vaccines at record-breaking speed, but also allow the IP owner to enter into agreements with appropriate partners to ensure the production and distribution of qualitied vaccines, the problem resides in infrastructure rather than IP. Thus, instead of IP waiver, boosting adequate health care infrastructure, vaccine education and medical personnel might be more essential for COVID-19 vaccines equitably and rapidly distributed. Pfizer CEO warned that since the production of Pfizer’s vaccine would require 280 different materials and components that are sourced from 19 countries around the world, the loss of patent protection may trigger global competition for these vaccine raw materials, and thus threaten vaccine production efficiency and affect vaccine safety. Moderna CEO said that he would not worry about the IP waiver proposal since Moderna had invested heavily in its mRNA supply chain, which did not exist before the pandemic, manufacturers who want to produce similar mRNA vaccines will need to conduct clinical trials, apply for authorization, and expand the scale of production, which may take up to 12 to 18 months. 3. Conclusion The grant of the IP waiver proposal might need the consensus of all WTO members. However, since the proposal might not be supported by several wealth countries, which might reflect the interest of big pharmaceutical companies, reach the unanimously agreement between all WTO members might be difficult. Besides, the main purpose for IP waiver is to increase the production of vaccines and treatments. However, when patent protection was lifted, a large number of new pharmaceutical companies lacking necessary knowhow and experience would join the production, which might not only result in snapping up the already tight raw materials, but also producing uneven quality of vaccines and drugs. Since patent right is only one of the many conditions required for the production of vaccines and drugs, IP waiver might not help increase the production immediately. Thus, other possible plans, such as the alternative plan proposed by EU, might also be considered to reduce disputes and achieving the goal of increasing production. As to the impact of the IP waiver proposal for Taiwan, it can be analyzed from two aspects: 1. Whether Taiwan need IP waiver to produce COVID-19 vaccine and drugs in need Since there is an established patent compulsory licensing system in Taiwan, the manufacture and use of COVID-19 vaccine and drugs might be legally permissible. To be specific, Article 87 of Taiwan Patent Act stipulates: “In response to national emergency or other circumstances of extreme urgency, the Specific Patent Agency shall, in accordance with an emergency order or upon notice from the central government authorities in charge of the business, grant compulsory licensing of a patent needed, and notify the patentee as soon as reasonably practicable.” Thus, in response to national emergency such as COVID-19 pandemic, Taiwan Intellectual Property Office (TIPO) could grant compulsory licensing of patents needed for prevention, containment or treatment of COVID-19, in accordance with emergency order or upon notice from the central government authorities. In fact, in 2005, in response to the avian flu outbreaks, TIPO had grant a compulsory licensing for Taiwan patent No.129988, the Tamiflu patent owned by Roche. 2. Whether IP Waiver would affect Taiwan’s pharmaceutical or medical device industry In fact, there are many COVID-19 related IP open resources for innovators to exploit, such as Open COVID Pledge, which provides free of charge IPs for use. Even for vaccines, Modena had promised not to enforce their COVID-19 related patents against those making vaccines during COVID-19 pandemic. Therefore, currently innovators in Taiwan could still obtain COVID-19 related IPs freely without overall IP Waiver. Needless to say, since many companies in Taiwan still work for the research and development of COVID-19-related medical device and drugs, sufficient IP protection could guarantee their profit and stimulate future innovation. Accordingly, since Taiwan could produce COVID-19 vaccines and drugs in need domestically by existing patent compulsory licensing system, and could obtain other COVID-19 related IPs via global open IP resources, in the meantime IP protection would secure Taiwan innovator’s profit, IP waiver proposal might not result in huge impact on Taiwan. Waiver From Certain Provisions Of The Trips Agreement For The Prevention, Containment And Treatment Of Covid-19, WTO, Oct 2, 2020, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669.pdf&Open=True (last visited July 5, 2021) Waiver From Certain Provisions Of The Trips Agreement For The Prevention, Containment And Treatment Of Covid-19 Revised Decision Text, WTO, May 25, 2021, https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/IP/C/W669R1.pdf&Open=True (last visited July 5, 2021) COVID-19 IP Waiver Supporters Splinter On What To Cover, Law360, June 30, 2021, https://www.law360.com/articles/1399245/covid-19-ip-waiver-supporters-splinter-on-what-to-cover- (last visited July 5, 2021) The Legal Framework for Waiving World Trade Organization (WTO) Obligations, Congressional Research Service, May 17, 2021, https://crsreports.congress.gov/product/pdf/LSB/LSB10599 (last visited July 5, 2021) South Africa and India push for COVID-19 patents ban, The Lancet, December 5, 2020, https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32581-2/fulltext (last visited July 5, 2021) MSF supports India and South Africa ask to waive COVID-19 patent rights, MSF, Oct 7, 2020, https://www.msf.org/msf-supports-india-and-south-africa-ask-waive-coronavirus-drug-patent-rights (last visited July 5, 2021) MSF urges wealthy countries not to block COVID-19 patent waiver, MSF, Feb. 3, https://www.msf.org/msf-urges-wealthy-countries-not-block-covid-19-patent-waiver (last visited July 5, 2021) Rich countries are refusing to waive the rights on Covid vaccines as global cases hit record levels, CNBC, Apr. 22, 2021,https://www.cnbc.com/2021/04/22/covid-rich-countries-are-refusing-to-waive-ip-rights-on-vaccines.html (last visited July 5, 2021) Statement from Ambassador Katherine Tai on the Covid-19 Trips Waiver, May 5, 2021, https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/may/statement-ambassador-katherine-tai-covid-19-trips-waiver (last visited July 5, 2021) TRIPS waiver: EU Council and European Commission must support equitable access to COVID-19 vaccines for all, Education International, June 9, 2021, https://www.ei-ie.org/en/item/24916:trips-waiver-eu-council-and-european-commission-must-support-equitable-access-to-covid-19-vaccines-for-all (last visited July 5, 2021) EU proposes a strong multilateral trade response to the COVID-19 pandemic, European Commission, June 21, 2021, https://trade.ec.europa.eu/doclib/press/index.cfm?id=2272 (last visited July 5, 2021) Drugmakers say Biden misguided over vaccine patent waiver, Reuters, May 6, 2021, https://www.reuters.com/business/healthcare-pharmaceuticals/pharmaceutical-association-says-biden-move-covid-19-vaccine-patent-wrong-answer-2021-05-05/ (last visited July 5, 2021) J&J's Chief Patent Atty Says COVID IP Waiver Won't Work, Law360, Apr. 22, 2021, https://www.law360.com/ip/articles/1375715?utm_source=rss&utm_medium=rss&utm_campaign=section (last visited July 5, 2021) Pfizer CEO opposes U.S. call to waive Covid vaccine patents, cites manufacturing and safety issues, CNBC, May 7, 2021, https://www.cnbc.com/2021/05/07/pfizer-ceo-biden-backed-covid-vaccine-patent-waiver-will-cause-problems.html (last visited July 5, 2021) Moderna CEO says he's not losing any sleep over Biden's support for COVID-19 vaccine waiver, Fierce Pharma, May 6, 2021, https://www.fiercepharma.com/pharma/moderna-ceo-says-he-s-not-losing-any-sleep-over-biden-s-endorsement-for-covid-19-ip-waiver (last visited July 5, 2021) Open Covid Pledge. https://opencovidpledge.org/ (last visited July 7, 2021) Statement by Moderna on Intellectual Property Matters during the COVID-19 Pandemic, Moderna, Oct. 8, 2020, https://investors.modernatx.com/news-releases/news-release-details/statement-moderna-intellectual-property-matters-during-covid-19 (last visited July 7, 2021)Korea “Strategies for an Intellectual Property Powerhouse to Realize a Creative Economy” Overview
Background Since 1990, many countries like United States, Japan and EU understand that intellectual properties create higher value added than tangible assets do so these countries respectively transformed their economic types to knowledge-based economy so as to boost economic growth and competitiveness. For example, Japan has legislated “Intellectual Property Basic Act” in 2002 and established “the Intellectual Property Strategy Headquarters” in 2003. United States legislated “Prioritizing Resources and Organization for Intellectual Property Act (PRO-IP Act)” in 2008. China also announced “National Intellectual Property Strategic Principles” in June, 2008. Following the above international tendency of protecting intellectual properties, Korea government has promoted intellectual property related policies and legislated related acts since 2000, such as “Technology Transfer Promotion Act” in 2000, policy of supporting patent disputes settlements and shortened the length of patent examination procedure in 2004. Besides, on June 27, 2006, the Presidential Advisory Council on Education, Science and Technology (PACEST) announced “Strategy for Intellectual Property System Constructing Plan.” However, these policies or acts mainly focus on the protection and application of patent rights, not relate to other kinds of intellectual property rights such as trademark right, copyright etc. Until 2008, in order to advance the ability of national competition, Lee Myung-bak government had established “Presidential Council on National Competitiveness (PCNC)”. For the vision of transforming to the intellectual property based economy, the PCNC held its 15th meeting on July 29, 2009. The meeting, held at the Blue House, was attended by the president, the Chairman, and members of the Council. One of the agenda of the meeting is strategies for an intellectual property (IP) powerhouse to realize a creative economy. Three goals of the strategies includes being IP Top 5 nations (U.S., Japan, EU, Korea and China), improving technology balance of payments deficits, and enhancing the scale of copyright industry. Next, this study will introduce details of Korea IP related strategies for our nation’s reference. Introduction Korea IP strategy consists of 3 aspects (creation and application, law and regulation, infrastructure) and 11 missions. And the contents of 11 missions cover the creation, protection and application of intellectual property rights (patent, copyright, trademark, plant variety etc), namely the whole life cycle of intellectual property rights. Through announcement of IP Strategies, Korea hopes to protect intellectual property rights from every aspect and makes IP as essential driving force for national economic growth. 1. Creation and Application Aspect First, although the quantity of intellectual property rights (IPRs) of Korea is rapidly increased in recent years, the quality of intellectual property rights is not increased equally. Also, most of researchers do not receive appropriate rewards from R&D institutions, and then it might reduce further innovation. As above reasons, Korea IP strategy indicated that the government will raise “invention capital” to exploit, buy researchers’ new ideas, and make those ideas get legal protection. That is, the government will set up non-practicing entities (NPEs) with private business. The NPEs would buy intellectual properties from R&D institutions or researchers, and then license to enterprises who have need. After licensing, NPEs will share royalty which obtained from enterprises (licensees) with researchers appropriately. Besides, in order to encourage university, public R&D institutions to set up “technology holdings”, Korea government had amended “Industry Education and Corporation of Industry, Academic and Research Promotion Act”. The amendments are loosening establishment conditions of technology holdings, such as minimum portion of investment in technology has been lowered from 50% to 30%, and broadening the scope of business of technology holdings. 2. Law and Regulation Aspect Secondly, in aspect of law and regulation, in addition to encouraging creation of good quality of IP, Korea considers that intellectual property rights are needed to be protected legally. Therefore, the IP strategy especially pointed out that Korea would follow the example of Japan to legislate their own “Intellectual Property Basic Act”. According to Korea “Intellectual Property Basic Act”, it should establish a “Presidential Council on Intellectual Property”. The main work of this Council is planning and promoting intellectual property related policies. There are 5 chapters and 41 articles in Korea “Intellectual Property Basic Act”. The Act like Korea IP strategy is divided into three parts, that is, “creation and application”, “protection” and “infrastructure”. In fact, the legislation of Korea “Intellectual Property Basic Act” embodies the policies of IP strategy. Further, according to Korea “Intellectual Property Basic Act”, “Presidential Council on Intellectual Property” is to integrate IP related affairs of the administrations into one action plan and promote it. Moreover, according to Korea “Intellectual Property Basic Act”, the government should make medium-term and long-term policies and basic plans for the promotion of intellectual properties every 5 years and adjusts policies and plans periodically as well. Through framing, enacting and adjusting policies and plans, Korea expects to create a well-living environment for the development of intellectual property. 3. Infrastructure Aspect Thirdly, even if good laws and regulations are already made and more government budget and human resource are invested, Korea is still deficient in well-prepared social infrastructure and leads to the situation that any promoting means of intellectual properties will be in vain. With regard to one of visions of Korea IP strategy,” being IP Top 5 power (U.S., Japan, EU, Korea and China)”, on the one hand, Korea domestic patent system should harmonize with international intellectual property regulations that includes loosening the conditions of application and renewal of patent and trademark. On the other hand, the procedure of patent application conforms to the international standard, that is, the written form of USA patent application becomes similar to the forms of world IP Top 3 power (U.S., Japan and EU) and member states of Paten Law Treaty (PLT). At the same time, Korea would join “Patent Prosecution Highway (PPH)” to enable Korea enterprises to acquire protection of patent rights around the world more rapidly. In addition, about the investigation of infringement of intellectual property rights, Korea IP strategy stated that it would strengthen control measures on nation border and broaden IP protection scope from only patent to trademark, copyright and geographical indications. Besides, Korea uses network technology to develop a 24-hour online monitoring system to track fakes and illegal copies. In addition to domestic IP protection, Korea enterprises may face IP infringement at overseas market, thus Korea government has provided supports for intellectual property rights disputes. For this sake, Korea choose overseas market such as Southeast Asia, China, and North America etc to establish “IP Desk” and “Copyright Center” for providing IP legal consultation, support of dispute-resolving expenses and information services for Korea enterprises. Korea IP strategy partially emphasizes on the copyright trading system As mentioned above, one of visions of Korea IP strategy is “enhancing the development of copyright industry”. It’s well-known that Korea culture industries like music, movie, TV, online game industries are vigorous in recent years. Those culture industries are closely connected to copyright, so development of copyright industry is set as priority policy of Korea. In order to enhance the development of Korea copyright industry, a well-trading environment or platform is necessary so as to make more copyrighted works to be exploited. Therefore, Korea Copyright Commission has developed “Integrated Copyright Number (ICN)” that is identification number for digital copyrighted work. Author or copyright owners register copyright related information on “Copyright Integrated Management System (CIMS)” which manages information of copyrighted works provided by the authors or copyright owners, and CIMS would give an ICN number for the copyrighted work, so that users could through the ICN get license easily on “Copyright License Management System (CLMS)” which makes transactions between licensors and licensees. By distributing ICN to copyrighted works, not only the licensee knows whom the copyright belongs to, but the CLMS would preserve license contracts to ensure legality of the licensee’s copyright. After copyright licensing, because of characteristic of digital and Internet, it makes illegal reproductions of copyrighted works easily and copyright owners are subject to significant damages. For this reason, Korea Ministry of Culture, Sports and Tourism (MCST) and Korea Intellectual property Office (KIPO) have respectively developed online intellectual property (copyright and trademark) monitoring system. The main purpose of these two systems is assisting copyright and trademark owners to protect their interests by collecting and analyzing infringement data, and then handing over these data to the judiciary. Conclusion Korea IP strategy has covered all types of intellectual properties clearly. The strategy does not emphasize only on patent, it also includes copyright, trademark etc. If Taiwan wants to transform the economic type to IP-based economy, like Korea, offering protection to other intellectual property rights should not be ignored, too. As Taiwan intends to promote cultural and creative industry and shows soft power of Taiwan around the world, the IP strategy of Taiwan should be planned more comprehensively in the future. In addition to protecting copyrights by laws and regulations, for cultural and creative industry, trading of copyrights is equally important. The remarkable part of Korea IP strategy is the construction of copyright online trading platform. Accordingly, Taiwan should establish our own copyright online trading platform combining copyright registration and source identification system, and seriously consider the feasibility of giving registered copyright legal effects. A well-trading platform integrating registration and source identification system might decrease risks during the process of licensing the copyright. At the same time, many infringements of copyrights are caused because of the nature of the modern network technology. In order to track illegal copies on the internet, Taiwan also should develop online monitoring system to help copyright owners to collect and preserve infringement evidences. In sum, a copyright trading system (including ICN and online intellectual property monitoring system) could reinforce soft power of Taiwan cultural and creative industry well.