The Development of Non-Drama TV Programs in Taiwan and the Protection of Intellectual Property Rights
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.
J. Kitty Huang Chien-Shan Chiu Background In order to provide insight into intellectual property (IP) awareness, the status quo as well as potential hardship and demands arise over IP management, STLC was commissioned by IDB (Industrial Development Bureau) to conduct a survey study in June 2010. In this article, we provide briefings on the contents, research methodology and major findings of this study. About the research The survey questionnaire was sent by means of emails or posts to a total of 1000 business establishments randomly generated from the registration data facilitated by the Ministry of Economic Affairs. This was also the first time that such a survey has been envisaged on such a comprehensive scale, covering businesses located around Taiwan with the aim being to produce an in-depth analysis into IP management in various industries including manufacturing, precision machineries, photonics, bio-medicals, info-techs, semiconductors etc. Sixty-five percent of the respondents have less than fifty employees and the overall response rate achieved was 13.1%.1 A continuing need to strengthen IP awareness is required The first section of the questionnaire dealing with IP awareness gauged respondent companies IP knowledge and understanding through a series of questions relating to IP law and practice. When asked whether formal registration was necessary to obtain a range of intellectual property rights (IPRs), over 70% of companies replied with correct answers, namely patents, designs and trademarks. However, through other questions at a more advanced level, the responses revealed a general lack of knowledge in IP law and hence a continuing need to strengthen IP awareness is required. For instance, overall 70% of companies know that obtaining patents will require formal registration, yet surprisingly even of these over 50% incorrectly thought the manners of patent utilization, such as making products, will not result in infringing others IPRs. This result arguably suggests that respondents are in the main unaware that a patent does not give the patent owner the right to exploit the patented invention himself, but rather, he has only the “exclusive right” to stop others from doing so. For another instance, whilst 32% of respondents inaccurately thought that a formal registration is required to obtain copyrights, nonetheless this does not equate to the result being a near 70% of companies have a full and correct knowledge in regard to copyright. When faced with a slightly more obscure question of who would own the copyright in commissioned work (such as website creation) in the absence of a contract, 26% of companies didn’t know and 30% answered incorrectly. On the same token, though only 10% of respondents erroneously believed that trade secrets would require a formal registration, when asked whether the company’s client list may be a trade secret, the number of correct replies (61%) drops sharply when compared to the previous one. Though intended as a question to discriminate at the upper levels of trade secret awareness, the replies are more likely to reflect a lack comprehension of the subject among Taiwanese companies. The important message arise from the overall scales in the first section of the survey is that the need for IP awareness promotion and enhancement amongst companies in Taiwan still exists. Lack of IP expertise is a major barrier In the second section of the questionnaire companies were asked a series of questions which were intended to measure the status quo through the extent of IP management practices. Perhaps one would agree that the issue of perceptions of the importance of IP to a company is greatly linked to how effective it manages them. When asked to indicate reasons as to why IP is important to their business, the replies were rather polarized. The two most popular reasons were “means to differentiate from competitors” (33%) and “to prevent infringement” (30%). The distinction between the two is clearly that the former reason is relatively active and strategic whilst the latter is perceived to be passive and defensive. On the other hand, “to retrieve the cost of R&D” (4%) and “to attract more investors” (5%) are least likely to be seen as the reasons why IP is important to them. The results may suggest that generally speaking, Taiwanese companies tended not to utilize their IP to generate revenues nor correlate them with the business strategies, but rather, see them more of a shield to avoid infringement. Companies were asked what IPRs they own and the most common ones are trademarks (21%) and utility patents (20%), with invention patents (14%) being the third on the rank. In contrast only 2% of respondent companies own copyrights. While such result may be attributed to the overall structure of the industry, it may also link to the observation that most companies not merely lack the comprehension of copyrights but may also not be aware of owning such IPR. Furthermore, it is also surprising to find that 45% of respondents do not own any IPRs. The absence of IPRs within these companies is perhaps a key indication of poor awareness and inactive management of IPRs amongst many Taiwanese companies. To measure the extent of IP management is not easy as the intensity of it differs both by sector and by size. Therefore, the task is achieved through 9 questions designed on the concept of PDCA (plan-do-check-act) process which would allow the respondents to review and find out any inadequacy in their IP management as they proceed. One would expect that those companies with effective IP management would take care to evaluate the various IPRs required at different time intervals. Whilst all of the answer choices are considered to be “important timings”, for example “when planning for new skills/products/business” and “when further investment in IP would enhance defense (such as infringement prevention); yet the results revealed that over 60% of the companies did not perform such evaluation at whatever timing. This may suggest that in general, companies in Taiwan are inadequately concerned with the evaluation process within their management of IP. Such a result may consequently make them ignoring means to prevent infringement (such as checking competitors’ IPRs and prior-art search) or pay attention to regulation updates. Effective IP management indisputably requires certain monetary inputs. Companies were asked whether they have regularly spent on obtaining and maintaining IPRs the firm owns, and remarkably only about 36% of respondents answered this question. In addition the companies were asked about how much they spent on “application fees”2,“incentives offered to inventors”, “spending on HR” and “other expense”. Only a paltry 6% of all respondent companies spent on all the abovementioned categories and mostly up to the amount of NT$100,000 (roughly USD$3300) per each. Linked with the spending on IPRs is perhaps whether companies have designated staff responsible for managing IPRs or have a separate IP department. Again, 70% of respondents replied negatively to this question and only 10% of some larger companies (with over 200 employees) have specific personnel or department designated to assume this responsibility. The results may indicate a general lack of expertise in managing IPRs as a barrier to leveraging full value of them as well as making proper legal decision in the event of IP related disputes Companies were asked how to protect their IPRs through a variety of methods of protection though the majority (over 72%) didn’t implement any of them. The most highly identified method being “protect core skills by patents”, however, only 35% of companies adopted such protection. Furthermore, roughly 76% of the companies did not conduct training in IP issues for employees, and over 75% did not attempt to assess the efficiency of their management of IP. The explanation to the above is conceivably a general lack of IP expertise due to inadequate monetary inputs as well as perceived high costs for IP specialists within the company. The results ultimately reflect an inefficient execution of IP management in the massive Taiwanese companies. Most companies have only limited resources The final aspect of IP management that has been surveyed is the hardships occurred and accordingly the resources sought to solve them. When asked what are the major difficulties in the process of managing IP, the most common answers were “high expenditure on filing and maintenance” (18%), “lack of professional advice” (15%) and “regulatory complexity” (15%). These results are arguably all related to the facts already discussed in the afore-mentioned paragraphs. In general, the survey revealed that most companies have only limited resources and therefore highly demand external aids such as government funding or projects to help soften the hardships and improve their management skills. Accordingly, “unifying resources for enhancing IP management through a mutual platform” (22%) and “facilitate industry peer networks” (21%) being the most popular resources sought. Furthermore, 14% of the respondents indicated their urge to receive “on-site expert assistance”, and a remarkable 90% of the respondents have never been aware of the TIPS (Taiwan Intellectual Property Management System) project, which is one initiated by the government to help companies set up a systematic IP management system. As a result, efforts to promote the TIPS project should be further devoted as the initial step to assist companies strengthen their IP awareness and management skills. Conclusion The results of the survey present the status quo of IP management amongst the companies in Taiwan which is proportionally consistent with their IP awareness as well as hardships and resources sought. The present study shows what one might expect, that is larger companies tend to be more IP aware and have greater resources to manage their IPRs, whilst the rest of others (especially SMEs) are in the main inadequately aware of IP, which is crucial to enhance active IP management within and throughout their firms. While various resources are highly demanded, perhaps the government should firstly take steps to promote that awareness within and throughout their organizations. Linked with this is the second important point which is that further promotion of the TIPS project should be aimed at not only enhancing IP awareness but also assisting companies to better manage their IPRs. IP management is essential to preserve IP created by companies and the TIPS system would enable companies to foster and strengthen key aspects of IP management such as conduct training in IP issues for employees, evaluate various IPRs required, etc. Some of the complementary measures as such expert consultations and TIPS networks or seminars would also help to alleviate some of the hardships encountered in the process of managing IP. On the other hand, like the “Survey on Business Attitudes to Intellectual Property” being conducted yearly in Hong Kong since year 2004, it is suggested that the present survey research or the alike to be continually carried out to assist promoting IP awareness within Taiwan industry. Finally, we would like to thank everyone who contributed to this survey research and hope that it provides valuable insight into the goals originally proposed. 1.The survey resulted in 157 replies from which 26 of them were nullified by false or incomplete answers. 2.Application fees” include fees occurred from exploring inventions up to application and maintenance, which also include attorney fees.
Review of Singapore IP Dispute Resolution DevelopmentReview of Singapore IP Dispute Resolution Development Preface In recent years, advantage of capital and productivity are not enough for company to stand out from the business battle. Innovation and creation become the driver of business growth. Intellectual Property (“IP”) Right turns out to be the power to boost international competitiveness. In March 2013, Singapore submitted 10-year IP Hub Master Plan to guide Singapore’s development as a Global IP Hub in Asia. Six Strategies are identified from IP Hub Master Plan. This article focuses on strategy 4, developing Singapore as a choice venue for IP dispute resolution through a strong IP Court and deep IP alternative dispute resolution capabilities, to understand how Singapore attracts various stakeholders and hence create a hive of IP activities by adopting tailored processes to facilitate the resolution of IP cases and promoting alternative dispute resolution. Key Points of IP Dispute Resolution When it comes to IP issue, oblige will take either marketplace or area of IP application into account for choosing jurisdiction of dispute resolution. The major IP war occurs in America and China. Although Singapore deals with less IP case, the government considers itself as a transparent, efficient and neutral justice system, coupling with lots of transnational divisions in Singapore, which creates an opportunity to develop IP dispute resolution. To achieve the goal, Singapore puts its hand to enhance capabilities of IP Court and IP alternative dispute resolution for bringing more IP litigations and IP alternative dispute resolution to Singapore. 1. Enhance Capabilities of IP Court (1) Efficiencize Processes In September 2013, the Registrar of the Supreme Court released Circular 2 of 2013 on the issuance of the IP Court Guide, which will apply to all cases under the IP docket of the Supreme Court with immediate effect. An IP Judge will be assigned to hear all interlocutory appeals, milestone pre-trial conferences (“PTCs”) and the trial on liability. The IP Court Guide provides for two milestone PTCs before set down for trial whereby the lead counsel must personally attend to address the IP Judge on certain specified issues. All other PTCs will be heard by the senior assistant registrar managing the IP docket. Subject to certain exceptions, an assistant registrar will hear all interlocutory applications arising in each IP case. In addition, to support the IP Court’s adjudication functions, the IP Court Guide provides for the appointment of assessors (for technical expertise) and amicus curiae (for legal expertise) for IP cases. Parties are encouraged to propose a single candidate by agreement. Otherwise, parties should agree on and propose a shortlist of candidates. Due to improvement, it is more convenient for parties to track trail status. For IP Judges, they can get familiar with cases and related evidence through PCTs before entering trail process. On the whole, this change increases trail efficiency and quality. (2) Set Up Singapore International Commercial Court The Ministry of Law proposed amendments to the Constitution of the Republic of Singapore and the Supreme Court Judicature Act in October 2014. The new legislation and regulations laid the foundation of Singapore International Commercial Court (“SICC”), which was set up in January 2015. The SICC, the only one International Commercial Court in Asia, is a division of the Singapore High Court and part of the Supreme Court of Singapore designed to deal with transnational commercial disputes including business issues and patent suits. Key Features of the SICC: A. SICC matters will be heard by a Panel comprising High Court Judges, associate Judges and foreign associate Judges with extensive experience and highly regarded reputation. B. A party may be represented by a registered foreign counsel without any involvement of local Singapore counsel if the matter in question is considered to be an “offshore case”. An “offshore case” is defined in the amended Rules of Court as a case which has no substantial connection to Singapore either because (i) Singapore law is not the law applicable to the dispute and the subject matter of the dispute is not regulated by or otherwise subject to Singapore law, or (ii) The only connection between the dispute and Singapore are the parties’ choice of Singapore as the law applicable to the dispute and the parties’ submission to the SICC’s jurisdiction (“Singapore Law-only Connection”). C. The SICC will hear cases governed by Singapore law and by foreign law, with the Court taking judicial notice of the foreign law. In addition, the SICC is not bound by the domestic rules of evidence at all and may apply other rules of evidence whether they are found in a foreign law or otherwise, if the parties make an application for it. 2.Strengthen Capabilities of IP Alternative Dispute Resolution Singapore International Arbitration Center (“SIAC”) and the WIPO Arbitration and Mediation Center Singapore Office were set up respectively in 1991 and 2001 to strengthen capabilities of IP arbitration. On the basis of these two centers, in order to enrich alternative dispute resolution, Singapore also established Singapore International Mediation Center (“SIMC”) and launched the service of arbitration-mediation-arbitration (“Arb-Med-Arb”) in November 2014. Arb-Med-Arb is a process where a dispute is referred to arbitration before mediation is attempted. If the parties are able to settle their dispute through mediation, their mediated settlement may be recorded as a consent award. If the parties are unable to settle their dispute through mediation, they may continue with the arbitration proceedings. Arb-Med-Arb is definitely a better way for parties to reach a consensus on a dispute since arbitration is more costly and mediation is less powerful. Conclusion The SIMC and the SIAC are now collectively working on mediation, Arb-Med-Arb and arbitration and providing various IP alternative dispute resolutions. Moreover, the SICC and IP Court are charged with IP litigation. These make Singapore a comprehensive IP dispute resolution system. In the process of revolution, Singapore puts itself up to breakthrough as to amendments and the Supreme Court Judicature Act, which establish legitimacy of SICC. The government also defines IP dispute resolution services, such as SIMC’s mediation, Arb-Med-Arb, arbitration as well as SICC features. Nevertheless, other than SIAC, SICC decision may be difficult to enforce transnationally due to lack of legislation. To sum up, Singapore earns recognition for aggressively proposing amendments and assigning responsibilities after setting IP target and evaluating obstacles; however, it is better to pay special attention to that if the market can keep up with administrative efficiency or if the IP strategy could accord with the demands of the market.
Copyright Ownership for Outputs by Artificial IntelligenceCopyright Ownership for Outputs by Artificial Intelligence One. Introduction I. From Machine Learning to Deep Learning, AI is Thinking The famous philosopher, mathematician and physicist René Descartes from France in the 17th century said: “Cogito ergo sum”. This is considered a radical skepticism in the context of philosophy. When a philosopher raises the question that how one person can be sure of his/her existence, it is not about the feeling, cognition or experience with the world. Rather, it is about thinking. Artificial intelligence works like interconnected human neurons, with the logics and algorithms built with codes and processed with high speed. The nutrient it requires is the massive amount of data. In the past, artificial intelligence only works according to the logical setup and instructions from developers. In the era of machine learning today, humans have empowered machines with the capability of processing. This is achieved not by writing comprehensive and exhaustive rules. Rather, it is by making machines able to figure out rules on their own. In other words, all we need to do is to prepare data. Machines can be trained to think and judge. Artificial intelligence will eventually generate its outputs and start to create contents. Image recognition is a good illustration of how machine learning works, as part of the wider AI. The identification of cats is a classic example. A large number of pictures and photos of cats are provided, with descriptions of features to train machines. The purpose is to train machines into building their own criteria as to what cats are about. According to the Proceedings of the Seventh IEEE International Conference on Computer Vision in 1999, image recognition is processed with the technology similar with neurons for visual recognition by primates[1]. Twenty years on, machine learning (as part of artificial intelligence) has come a long way. The number of neural network models, built on neurons, has grown exponentially[2]. Deep learning has been developed with layers of neurons. There are links only between neighbouring layers to reduce the number of variables and enhance the speed of computing. In the context of machine learning, learning is about the selection of an optimal solution from multiple variables[3]. Big data is fed into the man-made neural networks constructed in the computers so that they are constantly trained and learning. Hung-yi Lee[4], a scholar specialized in artificial intelligence in Taiwan, provides a simple analogy for this technology. Machine learning is like a human brain with one layer of neurons; whilst deep learning works with many neurons and hence can learn on their own, make judgement and establish logics[5]. In other words, artificial intelligence is capable of analysing, identifying and decision-making on its own, and human is becoming less relevant in this process. Artificial intelligence is able to think. This is not only a factual description, but also a trigger to fundamentally change the legal institution of nations. II. Who Owns the Outputs Generated with Thinking? Over the long run, whether the legal institution and the society are ready to give artificial intelligence “quasi” right of personality is a topic worth exploring. In the immediate term, what normative models should be used to define the ownership of copyrights for the outputs and creations by artificial intelligence? The decision on copyright ownership has always been a hot topic in the field of intellectual property. The legal system in the U.S. describes the protected entity for copyright as “the fruits of the intellectual labor”. Article 798 of the Civil Code in Taiwan says, “Fruits that fall naturally on an adjacent land are deemed to belong to the owner of such land, except if it is a land for public use”. The fruit, i.e. outputs generated by artificial intelligence, also falls into the society of rules governed by rights and obligations. Of course, it is necessary to first define and regulate the entity that owns the rights. This begs many fundamental questions in the context of copyright laws. Who owns the rights? The developers (perhaps on a pro-rata basis), data owners, or the companies that provide infrastructure to developers? Once the boundary of imagination and reality is pushed further, the ownership of rights is no longer limited to human creators and may be extended to artificial intelligence. Moreover, it is possible for governments to insist that copyrights are only for human creations and the intellectual property created by artificial intelligence may fall into the public domain and hence fall unprotected legally, given the significance of public interest involved. This paper explores the copyright ownership for the outputs generated by artificial intelligence by systemically observing the real-life cases in the industry. This is followed with an analysis on the perspectives from the European Union, the United Kingdom and the United States. The purpose is to examine the contexts and normative models of artificial intelligence and copyrights and finally develop a preliminary framework for the regulation of artificial intelligence now and the future. Two. Creativity Capability of Artificial Intelligence Is a Reality With artificial intelligence and Big Data driving the development of industries, the exploration with the construction and normative models of the legal system should start with the reflection of social values, so as to achieve the purpose of social order with laws and regulations. The construction of the legal system for technology should be anchored on the observation of facts, given the rapid advancement and evolution of emerging technologies. The fact today is that artificial intelligence is being used for art creations such as musical composition, poetry and painting. Developers train artificial intelligence with massive data and enable deep learning to grasp the essence of artworks in order to generate outputs. Whether the ultimate purpose is commercial profitability or not, most of these outputs have reached a certain level of quality. Below is a brief introduction of creative techniques and new business models of artificial intelligence in music composition, poetry writing, painting and news writing. I. Original Music Generated with Deep Learning: Fast and User-friendly The vibrant development of the Internet has created an online celebrity economy. Youtubers, Internet personalities, cyberstars, Wanghong (or internet fame in Mandarin) produce films or release podcasts to attract the audience for direct/indirect and commercial/non-profit-seeking purposes. The production of such films and live broadcasting, or the creation of original online or PC games creates the demand for background music or sound effects. Ed Newton-Rex, who earned a bachelor of arts degree in music from University of Cambridge, founded JukeDeck[6] after he went to a computer science class in Harvard University. JukeDeck is an online music generator, developed with deep learning(as part of artificial intelligence). This paper believes that JukeDeck meets the industry demand with two offerings[7]: (I) JukeDeck Rapid generation of pleasant and unique music with deep learning The algorithm design by Ed Newton-Rex with artificial intelligence is different from the generation of background music and other music by the websites that use loop audio files. JukeDeck generates music pleasing to the ears with one tone at a time and avoids repetitions by analyzing musical forms, harmonies and tones with deep learning, so that the users in pursuit of originality and unique can acquire the musical materials within approximately 30 seconds, without worrying that they sound similar with others[8]. Greater flexibility in length to create bespoke styles and feelings JukeDeck offers flexibility in the length of music, up to five minutes depending on the preference of users. An extension is possible by mixing up different fragments. It is also possible to define musical styles and formats, e.g. piano, folksongs, electro and ambient music[9], as well as the feelings to be aroused, such as uplifting and melancholic. The music generated by deep learning is different from the free or paid music databases which use the so-called canned music and suffer the problems of mismatches between the film length and music length[10]. (II) Amper Music Amper Music was founded by the Hollywood songwriter Drew Silverstein (founder/CEO), Sam Estes and Michael Hobe[11] with the ambition to take a step further from music generation by artificial intelligence. In the spring of 2018, the company raised another $4 million for the development of music composition with artificial intelligence, the expansion of international markets and the recruitment of more talents. In the press release, Drew Silverstein said, “Amper’s rapid growth is a testament to how the massive growth of media requires a technological solution for music creation. Amper’s value stems not only from the means to collaborate and create music through AI, but also from its ability to help power media at a global scale.”[12] Similar with JukeDeck’s appeal to the public, Amper Music’s artificial intelligence allows users with no musical experience to create real-time and order original music[13]. It supports all the media formats. All is required is the choice for rhythms, styles and musical instruments desired[14]. Meanwhile, Amper Music posits that its music is royalty free, and comes with a global, perpetual license when synced to the outputs. In other words, users do not have to worry about legal procedures or financial costs[15]. II. Writing Pens Take Flight: A Challenge to the Fundamental of Literary Creation and Trigger for Labor Transformation Neuhumanismus (or Neohumanism) is about the achievement of self-mastery and humanity ideals through the study of classics. Compared with humanism, neohumanism places a greater focus on emotional expression and artistic creation. It also emphasizes the importance of language learning to self-realization of individuals.[16] After studying the works of 519 contemporary poets in the Chinese society, artificial intelligence has published modern poetry and made successful inroads to the world of literature traditionally driven by emotions and imaginations. In fact, it has posed a credible challenge to the human-centric humanism where only humans are endowed with the gift of artistic creativity. Artificial intelligence has been nominated for literary awards, evidenced of the quality of outputs generated by deep learning. With the support of massive data and analytics, it is only a matter of time for artificial intelligence to possess the literary creativity comparable to humans. However, the concern for originality in literature and the issues surrounding plagiarism and copyrights are the key determinants that influence of literary creation by artificial intelligence. This begs the questions about the ethics of literary creation. It is necessary to start with an understanding of how artificial intelligence creates, before the analysis of ethical and regulatory frameworks. (I) Xiaoice’s Collection “Sunshine Misses Windows” Xiaoice is the chatbot launched by Microsoft’s Software Technology Center Asia (STCA) in China in 2014. In 2017, Xiaoice published her collection of poems “Sunshine Misses Windows”[17], written by looking at pictures. The deep learning algorithms behind were co- developed by Wu Zhao-Zhong and Cheng Wen-Feng, two students in the Graduate Institute of Networking and Multimedia, National Taiwan University. The artificial intelligence writes poetry with the following methodology[18]: Use of image recognition technology to identify the keywords in the pictures: The adoption of image recognition technology developed by Microsoft’s Software Technology Center Asia (STCA) to identify the nouns in the pictures such as the bridge, skies and trees and the adjectives that express feelings such as beautiful or annoying. Matching of keywords from the training database: The training data for the matching of keywords and poetry database was the works of a total of 519 contemporary poets since the 1920s. The purpose was to fill in the gap between keywords and training data. Generation of poems: deep learning trained in the language model with keywords to create poems Improvement of poems: literary professionals and readers invited to give ratings. Submission of writings as an anonymous author to improve Xiaoice’s capability. The above is a summary of Xiaoice’s creative journey. Microsoft claims that the collection of poems was 100% written by Xiaoice, and it is the first collection of poems 100% written by artificial intelligence in history. The poems were not edited by humans and wrong characters were maintained as they were. The title “Sunshine Misses Windows” was also named by Xiaoice herself[19]. Despite all these, the originality and even the most fundamental “literality” of these poems are still questioned. At the end of 2018, the Research Institute for Humanities and Social Sciences, Ministry of Science & Technology and National Taiwan University organized the forum “Culture and Technology II: AI’s Literature Dream — Sunshine Misses Windows. Does Humanity Have a Boundary?” The professor in the Department of Chinese Literature, National Taiwan University and the poet Tang Juan discussed Xiaoice’s works[20] and commented as a critic of contemporary poetry. Xiaoice uses extensively the same vocabulary (such as the beach). Unable to use punctures, she can only break sentences and lines. Most importantly, her writings do not reflect our times and real experience. In other words, Xiaoice’s poems do not possess the unique perspective and soul of poets and literary characters. This may be the outcome of her reading of works from 519 poets from the 1920s. As a result, she is not able to connect with our times and real life and finds it difficult to resonate the shared emotions of people today. Tang Juan’s comment is more than just about literature. It is also about the selection and sourcing of training data, a prerequisite for the development of artificial intelligence, as well as the cost and consideration for copyright licensing. The research and development by corporates in artificial intelligence requires the corresponding and suitable training materials, particularly in the domain of literature. As commented by the poet Tang Juan, it requires extensive sources of contemporary works. It means the increasing difficulty to circumvent the works still protected by copyrights. If this cost consideration remains a hurdle, it is impossible to make improvements in further research. Put differently, the composition of training data is potentially a cost concern for copyright licensing. Before the legal system becomes well-developed and the establishment of consensus on the issues concerning training data, the possible infringement is an absolutely necessary balancing act for any robust developers and companies involved in artificial intelligence. (II) Yuurei Raita’s “The Day A Computer Writes A Novel” In 2013, Nikkei started to offer the Nikkei Hoshi Shinichi Literary Award to outstanding short Si-Fi novels, as a tribute to the late science fiction writer Hoshi Shinichi[21]. Three years later, Yuurei Raita’s “The Day A Computer Writes A Novel” appeared on Nikkei’s list of acceptance for competition. Miss Yoko is the leading character in this 2000-character short sci-fi novel[22]. Raita-kun is in fact an artificial intelligence team “Wagamama artificial intelligence as a writer” led by Hitoshi Matsubara, President of the Japanese Society of Artificial Intelligence and a professor in Future University[23]. Below is a description of their deep learning techniques[24]: Analysis of writing styles from training data: The team provides training data as the learning basis for artificial intelligence. (For this competition, the data is approximately 1,000 short stories written by Hoshi Shinichi.) The purpose is to analyze the frequently used words, novel structures and characters. Resource integration by the team: The team integrates the analyzed data with online information, storyline programs, human emotions and settings, and decides on characters, contents and plots[25]. Researchers provide three instructions, i.e., when, the weather, doing what so that artificial intelligence automatically generates detailed and tangible contents. Automatic generation of new works: Artificial intelligence refines the details and polishes the texts, to generate the new story by Hoshi Shinichi with fragments such as: “The same temperature and humidity in the room is maintained as usual. Yoko sits idly on the sofa, dishevelled and playing a dull game uninterested.” The procedures of novel contents generation described above indicate that artificial intelligence still relies on humans for setups and assistance. In contrast with the claim by the Microsoft team that Xiaoice is 100% artificial intelligence, the team in Japan confessed that artificial intelligence writing is still in a nascent stage. At least in literature types such as novels, artificial intelligence still needs appropriate guidance from humans for necessary writing elements, in order to generate and connect fragments to establish the finalized pieces. In general, artificial intelligence can only be held responsible for 20% of work[26]. However, the development of technology continues at its pace. When it is no longer easy to differentiate a piece of creative writing is by humans or by machines, the limitation of copyright protection to human’s creative works will be an obsolete approach. (III) Tencent: Robot “Dreamwriter” The above two AI writing teams focus on creative literature. In China, Tencent has developed Dreamwriter to rapidly generate news products. In the 2018 International Media Conference in Singapore[27] hosted by the East West Center, a think tank in the U.S. at the end of June 2018, Tencent demonstrated its translation engine. Speakers spoke in Chinese and the engine did simultaneous translation into English shown on the projector screen[28]. Tencent’s artificial intelligence “Dreamwriter” project started as a push engine for news flashes such as sports events. It later extended into financial and economic data and reporting, a field with extensive data and conducive to AI development and ML acceleration[29]. Dreamwriter only takes half to one second to generate a piece of news. It can generate approximately 5,000 articles per day, equivalent to the output of 208 journalists. This implies a transformation of labor requirements in journalism. Human reporters will be involved in in-depth coverage that requires creativity, industry knowledge and judgement[30], whilst basic and factual reporting will be completed by artificial intelligence. III. Brave New Work for Paintings: Rights Ownership in the Presence of Sophisticated Deep Learning In the autumn/winter of 2018, the Paris-based AI team Obvious presented “Portrait of Edmond Belamy”[31] in Prints & Multiples auction in New York. This painting was sold for a surprising high price of[32] $432,000 (or over NT$13 million)[33], as the first AI-generated painting being auctioned. The Obvious team focuses on Generative Adversarial Network (GAN)[34], a hot topic for the development of deep learning. (I) Technique to Improve Deep Learning: Generative Adversarial Network (GAN) The GAN technique was developed by Ian Goodfellow[35] in 2014 to promote and enhance deep learning by massively reducing the amount of training data required and cutting down on human intervention, assistance and involvement[36]. The GAN method can be illustrated in a high level by referring to the classical example of the image recognition for cats previously mentioned. The neural network model (as a deep learning technique) enables artificial intelligence to learn how to identify cats from a massive volume of pictures of cats. However, it is necessary for humans to train the machine by providing signs and feature descriptions for each picture. In contrast, the GAN technique is about the training of two competing networks,[37] i.e., a generative network and a discriminant network[38]. The generative network is responsible for generating the pictures that resemble real cats (i.e. made-believe cats) and the discriminant network reviews and determine whether the pictures are authentic. The two networks enhance capabilities by competing with each other. The idea is to improve the learning and competence of deep learning[39]. (II) Application in the Art of Paintings The GAN method can be used to generate paintings such as “Portrait of Edmond Belamy”. It can also identify fake paintings. Founder/CEO Jensen Huang of Nvidia, a leading artificial intelligence company, said in a forum that the GAN technique allows one neural network to paint the pictures in the Picasso style and the other network to identify images and paintings with unprecedented discriminant capabilities[40]. The seventh year of the Lumen Prize gave the biggest award to a nude portrait generated with the GAN technique[41]. The GAN applications have been mushrooming – turning a scribble into an art, a low-definition picture into a high-definition one, an aerial graph into a photo[42]. Below is a brief description of the concepts and procedures for the Obvious research team’s completion of “Portrait of Edmond Belamy”[43]: Analysis of portraits from training data: A total of 15,000 portraits from the 14th century to the 20th century as the training data Generative network vs. discriminant network: The generative network generates paintings on the basis of training data. The discriminant network seeks to identity the difference from human-created paintings in order to improve the capability of the generative network. This process continues until the discriminant network is no longer to tell a machine-created painting from a human-created painting. (III) Ownership of Rights to High Economic Value of Artworks The winning of the Lumen Prize in the UK by the nude portrait generated by artificial intelligence and the surprisingly high auction price paid for Portrait of Edmond Belamy are the testimony of the artificial intelligence’s creative capability. The ownership of the right to the monetary value of these artworks is a topic worthy of exploration. “The development team ‘Obvious’ for ‘Portrait of Edmond Belamy’ posits that if the author is the person who paints the painting, it is artificial intelligence. If the author is the person who seeks to convey a message, it is us[44]. The human’s role is being undermined as deep learning technology becomes increasingly sophisticated. Going forward, can artificial intelligence become the owner of rights? What should be the regulatory framework for now? At this juncture, this paper conducts an international comparison by examining how different governments consider the emerging legal issues. Three. Copyright Ownership of Works Created by Artificial Intelligence The explanatory ruling by the Copyright Division, Intellectual Property Office, Ministry of Economic Affairs issued in 2018[45] has expressed the Taiwan government’s stance on the issue of whether the outputs generated by artificial intelligence can enjoy copyrights. Below is the summary: Presumption: Article 10 and Article 33 of the Copyright Law[46] stipulates that only natural persons or legal persons can be the owner of rights and obligations pertaining to creative works and enjoy the protection of copyrights. Positioning and logics: The outputs generated by artificial intelligence are the intellectual results expressed by machines created by humans. Machines are neither natural persons or legal persons and hence do not attract copyrights. Proviso: If the results are created with participation of natural/legal persons and the machines are being operated for analytics, the copyright of the results expressed should belong to the natural/legal persons concerned. The above explanatory ruling seems to position artificial intelligence completely as a tool. However, the above example suggests an obvious trajectory for the creative journey for deep learning as an artificial intelligence technique. In the current stage and the foreseeable future, the description that robot analytics are straight mechanical operations is completely obsolete given that artificial intelligence is being applied in industry with dramatically reduced (or even completely without) human intervention and participation. It is a worthwhile exercise to explore the international thinking regarding how the legal framework should address the ownership of rights for outputs generated with deep learning as an artificial intelligence technique and the derived services/products by either opening up new legal structures or simply extending on the existing system. I. European Union (I) European Parliament: Establishment of Electronic Personhood? The European Parliament's Committee on Legal Affairs (JURI) passed a report on January 12, 2018 to provide suggestions to the Civil Law Rules on Robotics and urge the European Commission to set up laws and regulations governing robots and artificial intelligence by defining electronic personhood, similar with legal personhood for corporates as litigation entities for any issues associated with rights and obligations of artificial intelligence[47]. (II) Court of Justice of the European Union: Only Works Accomplished by Humans Eligible for Protection The Court of Justice of the European Union’s landmark case Infopaq International A/S v. Danske Dagbaldes Forening[48]suggests that copyrights are only applicable for original works, with originality reflecting the “author’s own intellectual creation.” The general interpretation is that such works should reflect the author’s personality. Hence, only human authors meet this criterion[49]. The third paragraph of Article 1 of the Directive 2009/24/EC also clearly states that only works that are the authors’ own intellectual creation enjoys eligibility for protection[50]. (III) Data Protection: GDPR and Declaration of cooperation on Artificial Intelligence The General Data Protection Regulation (GDPR) in European Union attracted significant attention among the companies active in the EU market in 2018. In fact, the GDPR provides comprehensive and representative regulations that have direct influence on technological development of artificial intelligence training, as well as legal protection and right construction on data, the crude oil for deep learning. Below are a few examples: Article 20 on data portability: The data subject has the right to receive his/her personal data from the data controller in a structured, commonly used and machine-readable format. This helps the industry to establish metadata and forms the basis of the database for artificial intelligence training. The consistency of metadata will enhance the training. Article 22 on automated individual decision-making The data subject has the right not to be subject to a decision based solely on automated processing. The data controller must lay down suitable measures to safeguard the data subject’s rights. Article 35 on data protection by design and by default This article provides the legal protection of large-scale and systematic monitoring of public and open areas with artificial intelligence and strikes a balance between the use of personal data and the interest of data subjects. On top of the GDPR, the 24 member states of the European Union signed the Declaration of Cooperation on Artificial Intelligence in 2018, in order to enhance access to public sector data for the digital single market. II. United Kingdom (I) Copyright Law: Source of Laws for Program Developers to Obtain Copyrights The copyright laws are stipulated in the Copyright, Designs and Patent Act (CDPA) 9 (3)[51]. It forms the source of the laws that grant copyrights to the developers of computer-generated works. Article 178 of the CDPA defines computer-generated works as the outputs generated by machines without human authors[52]. In contrast with the Court of Justice of the European Union’s decision that only human authors are eligible for copyright protection, the UK government opens up another door by specifying that program designers can obtain copyrights even if creative sparks come from machines[53]. This system is considered the most efficient because it enhances incentives for investments[54]. (II) Public Sector: Open up Government Data The UK government also opens up its data by posting all the official statistics on the website www.data.gov.uk. The Digital Economy Bill provides the legal framework for government agencies to use each other’s data for the benefit of the public, so as to effectively address the issues surrounding frauds and debts and improve the real-timeliness and accuracy of national statistics. As part of the Brexit preparation, the UK government has created its own GDPR (2018) to ensure the continued smooth cross-border operations of companies after Brexit. As it offers higher protection of consumers’ data and information, it is worthwhile to refer to the UK GDPR as a template for legal systems and rights frameworks. III. United States (I) U.S. Copyright Office: Only Intellectual Achievements of the Human Mind Eligible for Protection The case law originated in 1991——Feist Publications v. Rural Telephone Service Company[55]confirms that copyrights protect the creative powers of the mind. In the Naruto v. Slater (2016)[56] case, the court determines that the photos taken by a monkey are not eligible for copyright protection. Article 313.2 of the implementation guidelines of the Copyright Act issued by the U.S. Copyright Office specify that the works created without human authors are not protected by the Copyright Act. The amendment to Article 313.2 in 2017 states clearly that the U.S. Copyright Act only protects the intellectual achievements of the human mind[57]. The U.S. Copyright Act 503.03(a), titled “Works-not originated by a human author” also states that only works created by a human author can register for copyrights[58]. (II) Employment Principle: Enhanced Incentives and Investment Willingness The above court judgements and the implementation guidelines of the U.S. Copyright Act indicate that the U.S. Copyright Office does not confer non-human copyright[59]. However, the U.S. judicial rulings have allowed “the work made for hire provision” as exception to the creative authors, in order to encourage corporate investments. The 1909 amendment to the U.S. Copyright Act included the hired employees as authors. Unless otherwise agreed, “the author or proprietor of any work made the subject of copyright by this Act, or his executors, administrators, or assigns, shall have copyright for such work under the conditions and for the terms specified in this Act”. A typical example is the news agency’s employment of full-time journalists to produce editorials. The works by employees are a company’s key copyright assets[60]. (III)Employment/Sponsorship Principle if Realized in Taiwan: Companies Investing in Works to Obtain Copyright Protection Article 11 of the R.O.C. Copyright Act stipulates the ownership of the right to the works of employees on a case-by-case and factual basis. The decision is based on the nature of work, e.g., completion under the employer’s instructions or planning, the use of the employer’s budgets or resources. It is not necessarily related to the work hours or locations. In principle, the employee is the author of the works completed by him/her on the job. However, the employment contract supersedes if it specifies that the employer is the author. On the other hand, if the employee is the author, the intellectual property belongs to the employer. The contract supersedes if it specifies that the employee enjoys the intellectual property. Article 12 is about sponsorship and commissioning. Unless specified by the contract, the sponsored owns the intellectual property of his/her works and the sponsor has the right to use such intellectual property[61]. In sum, the ownership of the right to the outputs generated by artificial intelligence is similar with the employment/sponsorship principle. It is not set in the vacuum of legal contexts. Therefore, the scholar in Taiwan Lin Li-Chih suggests that the employment principle in the U.S. may be adopted. She posits that when certain conditions are met, artificial intelligence may be treated as the author, so that the outputs generated by artificial intelligence can be protected and the investing research institutes or corporates can own the works[62]. As both legal persons and natural persons can be authors in Taiwan, Lin Li-Chih proposes this approach to resolve disputes given the massive value to be created by artificial intelligence for different applications and the potential lengthy legislative process or laws disconnected from industry expectations. The idea is to avoid the human author requirement from hindering industry investments and innovations for works generated by artificial intelligence[63]. According to the employment/sponsorship principle, deep learning as an artificial intelligence method can be inferred to as the author and then teams and companies that develop the algorithms should own the intellectual property of the works. This will serve as the legal foundation for intellectual property protection. Four. Conclusion: Legal System and Policy Framework for Emerging Technologies I. Construction of Laws and Regulations on a Rolling Basis According to the Reality of Emerging Technologies Every law has its purpose, and the contents of laws depend on their regulatory objectives. However, such contents should be anchored on facts, in order to align the intended purposes. This is particularly the case for the laws and regulations governing emerging technologies because such laws and regulations should capture the fact of technological developments. The most straightforward and fundamental approach to relax the control of the existing legal mechanism is via communication, coordination and understanding. It can be initiated with more dialogues between the government agency responsible for the construction of the legal environment and the industries and the public as subjects of the laws and regulations. Regulators may wish to come up with dedicated laws for the comprehensive coverage of emerging technologies given the lack of understanding about the technology and the sweeping effects of the technology. However, not all technologies require special legislations. According to Frank H Easterbrook’s article “Cyberspace and the Law of the Horse” published by the University of Chicago’s legal journal, it is advised to properly categorize and analyze existing laws and regulations and apply the suitable ones to new technologies for issues surrounding intellectual property, contracts and torts, as if from the Law of the Horse to the Law of Cyberspace[64]. Similarly, the ownership of copyrights associated with artificial intelligence and the governance of emerging technologies such as autonomous driving and robots may be dealt in this way. The above analysis on the legal regimes in the European Union, the United Kingdom and the United States highlights two issues concerning the regulation of artificial intelligence and the development of legal environments. The growing sophistication of deep learning will enhance the capability of artificial intelligence in thinking, analysis and creation, with human intervention expected to be reduced to almost zero. The legal regime governing emerging technologies cannot stand in the way of technological and industry development or incentives for investment, as originally intended by the intellectual property laws. A balancing act is required. This paper thus suggests two models: Forward-looking approach to label rights ownership with legal articles This is the route taken by the UK government, by directly amending the intellectual property laws to specify that intellectual property of artificial intelligence belongs to program developers. It is the most efficient approach of paving the way for technological development by providing incentives to companies and developers. Adoption of the employment/sponsorship principle in conjunction with safe harbor clauses Another approach is without touching on the sensitive issue of law amendments. Judicial rulings or administrative interpretations by competent authorities are gradually released in the context of existing laws. A temporary solution is introduced with the adoption of the employment/sponsorship principle with corresponding templates and references for contract construction in the industry. This can work in conjunction with safe harbor clauses in the long run, by slowly converging the diversity of opinions and perspectives from corporates, government agencies and academic/research institutions. Adjustments by tightening or loosening on a rolling basis should be made in order to work out the optimal boundary and establish the basis for legislation in the next stage. II. Data as a Prerequisite for Artificial Intelligence Training In Taiwan where the legal environment is not yet ready or clear, the ownership of intellectual property for outputs generated by artificial intelligence also involves the potential licensing royalties for the sourcing of training data. It is worth noting that the use of data for artificial intelligence may affect the basic human rights due to discrimination or bias resultant from training data or algorithms. Therefore, it is necessary to enhance transparency and the protection of human rights conferred by the constitution with corresponding legal systems and ethical frameworks such as due process and fairness principle[65]. The other critical issue is the training database required for artificial intelligence applications. The government should provide more open data as a policy to support technology development in the corporate world or at research organizations. It is also necessary to make government information the structured metadata in order to enhance the efficiency and quality of research outputs. This is to facilitate added value by private sectors with data as an infrastructure provided by the government. Put differently, the government opens up structured data to empower the research and development of artificial intelligence; whilst the private sectors offer professional technology and development capabilities. In terms of promoting data openness and applications, the government assumes greater accountability in the balancing between data use and data protection, the two equally important public interests. As an island of technology, Taiwan should look beyond the horizon of skies and oceans in the era where information and data flows without borders. The Taiwan government should establish the capability in data openness, protection and control by joining international forums. For instance, the government can apply with the APEC to join the Cross-Border Privacy Rules System in order to encourage regional collaborations in data control and construct datasets with the resources of the country. It is important to focus on the process of data collection, processing, analysis and utilization and ensure policies are implemented with the protection of civil and human rights such as the Right to Know, the Right to Withdraw and Citizen Data Empowerment. [1] David G. Lowe, Object Recognition from Local Scale-Invariant Features, Proceedings of the Seventh IEEE International Conference on Computer Vision, https://ieeexplore.ieee.org/stamp/stamp.jsp?arnumber=790410 (last visited Dec. 27, 2018) excerpt from “These features share similar properties with neurons in inferior temporal cortex that are used for object recognition in primate vision”. [2] AI Lesson 101: Illustration of 27 Neural Network Models, Tech Orange, January 24, 2018, https://buzzorange.com/techorange/2018/01/24/neural-networks-compare/ (last visited on December 27, 2018) [3] Chen Yi-Ting (Bachelor’s Degree from Department of Physics, National Taiwan University, currently a PhD candidate in Department of Applied Physics, University of Stanford), Artificial Intelligence Starts with Neurons, May 3, 2018, https://case.ntu.edu.tw/blog/?p=30715 (last visited on December 27, 2018) [4] Hung-yi Lee’s personal profile at http://speech.ee.ntu.edu.tw/~tlkagk/. Currently teaching in Department of Electric Engineering, National Taiwan University; previously a guest scientist in MIT's Computer Science and Artificial Intelligence Laboratory (CSAIL); specialization in machine learning and deep learning [5] Chen Yan-Cheng, Who Is Likely to Lose Jobs in the Era of Artificial Intelligence? Experts Explains the Professional Skills in Demand for Deep Learning, December 26, 2018. https://www.managertoday.com.tw/articles/view/56859 (last visited on December 27, 2018) [6] Details available on JukeDeck’s official website at https://www.jukedeck.com/（last visited on January 11, 2019） [7] In addition to the leverage of two key features of artificial intelligence, JukeDeck is also very friendly to creative teams in need of musical materials in terms of royalties, fee structures, UI/UX design. The company offers free downloads to non-commercial users. An individual or a small group (of fewer than 10 people) can enjoy five free downloads each month and pay $6.99 per song for the sixth download and above. Large groups (of ten people or more) should pay $21.99 for each download. [8] DIGILOG Authors, “A Nightmare for Musicians? AI Online Music Composer System – JukeDeck, DIGILOG, June 2, 2016, https://digilog.tw/posts/668 （last visited on January 2, 2019） [9] Laird Studio, Let the Online Music Composer Jukedeck Produce Unique Background Music for Your Films or Games! March 8, 2016, https://www.laird.tw/2016/03/jukedeck-jukedeck-bgm.html (last visited on January 10, 2019) [10] As above. [11] Amper Music’s official website at https://www.ampermusic.com/（last visited on January 10, 2019） [12] GlobeNewswire, Amper Music Raises $4M to Fuel Growth of Artificial Intelligence Music Composition Technology, March 22, 2018, https://globenewswire.com/news-release/2018/03/22/1444796/0/zh-hant/Amper-Music%E7%B1%8C%E8%B3%87400%E8%90%AC%E7%BE%8E%E5%85%83%E4%BB%A5%E6%8E%A8%E5%8B%95%E4%BA%BA%E5%B7%A5%E6%99%BA%E8%83%BD%E7%B7%A8%E6%9B%B2%E6%8A%80%E8%A1%93%E7%9A%84%E7%99%BC%E5%B1%95.html (last visited on January 10, 2019）. This round was led by Horizons Ventures, with Two Sigma Ventures, Advancit Capital, Foundry Group and Kiwi Venture Partners. This brings the company's total investment to $9 million. [13] GlobeNewswire, same as above [14] Smart Piece of Wood, Free Online Composer Enabled by AI, Amper Music, March 1, 2017, Modern Musician，https://modernmusician.com/forums/index.php?threads/%E5%85%8D%E8%B2%BB%E7%B7%9A%E4%B8%8A%E5%B9%AB%E4%BD%A0%E4%BD%9C-%E7%B7%A8%E6%9B%B2%E7%9A%84%E4%BA%BA%E5%B7%A5%E6%99%BA%E8%83%BD%EF%BC%9Aamper-music.225650/ （last visited on January 10, 2019） [15] GlobeNewswire, same as Note 12 [16] Fang Yung-Chuan, Neohumanism, National Academy for Educational Research, http://terms.naer.edu.tw/detail/1312151/（last visited on January 10, 2019）. Neohumanism emerged in Europe in the 18th and 19th century, against rationalism and utilitarianism advocated by the enlightenment movement. Neohumanism argues that the value of things is not hinged on practicality. Rather, it stems from the things themselves. Humanity is precious not because of rationality, but resultant from emotional satisfaction in life. Cultures are originated by the spontaneous activities of humanity, on the basis of emotions and imaginations. [17] Synopsis by books.com.tw, who sells online Xiaoice’s “Sunshine Misses Windows”, the first collection of poems generated by artificial intelligence in history, August 1, 2017, China Times Publishing Co. https://www.books.com.tw/products/0010759209 （last visited on January 13, 2019） [18] Wong Shu-Ting, AI Talents in Taiwan Find Stage in China: NTU Students Participate in R&D That Empowers Microsoft’s Xiaoice to Write Poetry by Looking at Pictures, BusinessNext, June 6, 2017, https://www.bnext.com.tw/article/44784/ai-xiaoice-microsoft（last visited on January 10, 2019 [19] Synopsis by books.com.tw, same as Note 17 [20] The organizer did not provide handouts from the speakers. The summary was based on the author’s note. [21]Lin Ke-Hung, “More Than Playing Chess. AI Writes Novels Too. AI Novel Passes Preliminary Screening for a Novel Award! Reading at Frontline, https://news.readmoo.com/2016/03/25/ai-fictions/（last visited on January 10, 2019） [22] Ou Tzu-Jin, “2,3,5,7,11..？AI-written Novel in Japan Nominated for a Literary Award, April 7, 2016, The News Lens , https://www.thenewslens.com/article/38783（last visited on January 10, 2019） [23] TechBang, AI Team in Japan Develops Robots That Write Short Stories and Participates in Literary Competitions, TechNews, March 28, 2016, http://technews.tw/2016/03/28/ai-robot-novel-creation/（last visited on January 10, 2019） [24] Ou Tzu-Jin, same as Note 20 [25] TechBang, same as Note 21 [26] Lin Ke-Hung, same as Note 19 [27] The title of the forum was “What is News Now?”. It attracted over 300 journalists and media experts from the U.S. and Asia Pacific to discuss media phenomena today. Detailed agenda available at East West Centre’s official website at https://www.eastwestcenter.org/events/2018-international-media-conference-in-singapore（last visited on January 10, 2019） [28] Jason Liu, “Robot Writer, Transformation of South China Morning Post, State Monitoring, International Media Conference Day 1, China, Medium, June 25, 2018, https://medium.com/@chihhsin.liu/%E5%AF%AB%E7%A8%BF%E6%A9%9F%E5%99%A8%E4%BA%BA-%E5%8D%97%E8%8F%AF%E6%97%A9%E5%A0%B1%E8%BD%89%E5%9E%8B-%E5%9C%8B%E5%AE%B6%E7%9B%A3%E6%8E%A7-%E5%9C%8B%E9%9A%9B%E5%AA%92%E9%AB%94%E6%9C%83%E8%AD%B0day1-%E4%B8%AD%E5%9C%8B-c9c20bd00d75（last visited on January 10, 2019） [29] Jason Liu, same as above [30] Jason Liu, same as above [31] First Time Ever in the World！AI-Created Portrait, Sold at Christie's Auction for NT$13.34 Million, Liberty Times, October 26, 2018, http://news.ltn.com.tw/news/world/breakingnews/2592633（last visited on January 10, 2019） [32] The selling price is 40x higher than the expected price. The buyer’s identity is unknown. Chang Cheng-Yu, “First Time Ever! AI-Created Portrait Auctioned at Christie’s for NT$13.34 Million, October 26, 2018, LimitlessIQ，https://www.limitlessiq.com/news/post/view/id/7241/ （last visited on January 10, 2019） [33] Lin Pei-Yin, Does the NT$10m Worth AI Portrait Have Intellectual Property?” Apple Daily, Real-Time Forum, November 29, 2018, https://tw.appledaily.com/new/realtime/20181129/1475302/（last visited on January 10, 2019） [34] Jamie Beckett, What Are Generative and Discriminant Networks? Hear What Top Researchers Say, Nvidia, May 17, 2017, https://blogs.nvidia.com.tw/2017/05/generative-adversarial-network/（last visited on January 10, 2019） [35] Jamie Beckett, same as above. Ian Goodfellow is currently a Google research scientist. He was a PhD candidate in the Université de Montréal when he came up with the idea of generative adversarial networks (GAN). [36] Jamie Beckett, same as above [37] Jamie Beckett, same as above [38] Chang Cheng-Yu, same as Note 32 [39] Jamie Beckett, same as Note 34 [40] Video for the speech: GTC 2017: Big Bang of Modern AI (NVIDIA keynote part 4), link at https://www.youtube.com/watch?v=xQVWEmCvzoQ （last visited on January 10, 2019） [41] Wu Chia-Zhen, AI-Generated Nude Portrait Beats Real People’s Works by Claiming the UK Art Award and Prize of NT$120,000, LimitlessIQ, October 15, 2018 https://www.limitlessiq.com/news/post/view/id/7070/（last visited on January 10, 2019） [42] Jamie Beckett, same as Note 34 [43] Chang Cheng-Yu, same as Note 32 [44] Chang Cheng-Yu, same as Note 32 [45] The explanatory ruling by the Copyright Division, Intellectual Property Office, Ministry of Economic Affairs, Email 1070420, issued on April 20, 2018, https://www.tipo.gov.tw/ct.asp?ctNode=7448&mp=1&xItem=666643（last visited on January 2, 2019）. The discussion was in response to the training outcome of voice recognition patterns based on analytics of the 1999 Citizen Hotline voice data. [46] According to Article 10 of the Copyright Law, authors enjoy copyright at the time of the work completion. Article 33 stipulates that copyright for legal-person authors lasts 50 years after the first publication of the work concerned. [47] Yeh Yun-Ching, Birth of New Type of Legal Right/Liability Entity ─ Possibility of Robots Owning Copyrights According to 2017 Proposal from European Parliament, IP Observer - Patent & Trademark News from NAIP Issue No. 190, July 26, 2017 http://www.naipo.com/Portals/1/web_tw/Knowledge_Center/Laws/IPNC_170726_0201.htm （last visited on January 2, 2019） [48] C-5/08 Infopaq International A/S v. Danske Dagbaldes Forening. [49] Andres Guadamuz, Artificial Intelligence and Copyright, WIPO MAGAZING, October 2017, https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html (last visited on January 19, 2019). [50] The article indicates that “A work should be protected in “the sense that is the authors’ own intellectual creation. No other criteria shall be applied to determine its eligibility for protection”. [51] Excerpt from the original legal article: in case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken. [52] Excerpt from the original legal article: generated by computer in circumstances such that there is no human author of the work. [53] Andres Guadamuz, supra note 49. [54] Id. [55] Feist Publications v. Rural Telephone Service Company, Inc., 499 U.S. 340 (1991). “the fruits of intellectual labor that are founded in the creative powers of the mind.” [56] Naruto v. Slater, 2016 U.S. Dist. (N.D. Cal. Jan. 28, 2016). [57] The 2014 version of Article 313.2 provides a list of the examples not eligible for the U.S. Copyright Act protection. These include the works generated by the nature, animals or plants and the works purely generated by machines or machinery at random, without any creative inputs or intervention from humans. The examples given are photos taken by a monkey and murals painted by an elephant. The 2014 version establishes that works not created by humans are not eligible for copyright protection. The 2017 version takes a step further with more specific and straightforward wording. [58] Copyright Act 503.03(a): Works-not originated by a human author. In order to be entitled to copyright registration, a work must be the product of human authorship. Works produced by mechanical processes or random selection without any contribution by a human author are not registrable. Thus, a linoleum floor covering featuring a multicolored pebble design which was produced by a mechanical process in unrepeatable, random patterns, is not registrable. Similarly, a work owing its form to the forces of nature and lacking human authorship is not registrable; thus, for example, a piece of driftwood even if polished and mounted is not registrable. [59] Andres Guadamuz, supra note 49. [60] Lin Li-Chih, An Initial Examination of Copyright Disputes Concerning Artificial Intelligence —— Centered on the Author’s Identity, Intellectual Property Rights Journal, Volume 237, September 2019, pages 65-66 [61] The legislative rationale for Article 12 of the R.O.C. Copyright Act: The sponsor and the sponsored are typically in a more equal position for the works completed with sponsorship. It is different from the situation where the works are completed by an employee by using the hardware and software offered by the employer and receiving salaries from the employer. Therefore, the ownership of copyrights depends on the contract between the sponsor and the sponsored regarding the investment and sponsorship purposes. Unless otherwise specified by the contract, the sponsor typically provides funding because of his/her intention to use the works completed by the sponsored. Therefore, the intellectual property should belong to the sponsored. [62] Lin Li-Chih, same as Note 60, pages 75-76. Further reference of the principle used in the U.S. system: Annemarie Bridy (2016), The Evolution of Authorship: Work Made by Code, Columbia Journal of Law, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2836568. Also the same author (2012), Coding Creativity: Copyright and the Artificially Intelligent Author, Stanford Technology Law Review, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1888622. [63] Lin Li-Chih, same as Note 60, page 76 [64] Frank H Easterbrook, Cyberspace and the Law of the Horse, 1996 U. CHI. LEGAL F. 207. [65] Please refer to State v. Loomis, 317 Wis. 2d 235 (2016).
Antitrust Issue of Reasonable Royalty and Prohibition of Excessive Pricing in TaiwanAntitrust Issue of Reasonable Royalty and Prohibition of Excessive Pricing in Taiwan A proposed antitrust framework to determine a reasonable royalty I. INTRODUCTION “Can, and should antitrust laws and authorities step in market prices?” - It has long been a controversial antitrust issue, especially when an antitrust case is involved with allegedly unlawful monopolization (or called abuse of monopoly in some countries), Intellectual Property (IP) rights (IPRs), reasonable royalties, and the complex and fast-changing technologies behind. It thus constitutes the tricky and challenging antitrust issue of reasonable royalty - “if a monopolistic firm is charging reasonable royalties or abusing its monopoly power?” Since the goals and regimes of antitrust are very different between Asia, the United States (the U.S.), and Europe, there are consequently various ways to deal with such issue. A. China and its Per-Se Violation of Excessive Pricing Several countries in East Asia aim to protect fair competition and social public interests via antitrust laws, including some other non-competition-based goals.[1] China, Japan, Korea and Taiwan’s goals of antitrust all include protection of fair competition. China also articulates its goals to maintain public interests and promote socialist market economy. Japan also aims to promote the employment rate and the level of national income which are not competition-based goals. Furthermore, South Korea expresses its antitrust goal to achieve balanced economic development which is somehow tricky to judge. As a result of the concepts of fairness and non-competition interests, the antitrust issue of reasonable royalty can possibly lead to the determination of unfairly high prices and thus constitutes an unlawful per se violation of excessive pricing in East Asia. Take China as an example, China explicitly articulates the prohibition of charging unfairly high prices as a firm in dominant position.[2] Moreover, China has further stepped in determining “appropriate royalties” supposedly charged by licensors and has demanded foreign firms in China to charge lower royalty rates.[3] In Huawei v. InterDigital Technology Corporation (IDC), the court ruled that IDC charged Chinese firms unfairly high royalties and further held that the royalty rates of the Standard Essential Patents (SEPs) charged by IDC shall not exceed 0.019%. In the Qualcomm case in China, National Development and Reform Commission of China ruled that Qualcomm was charging unfairly high prices and demanded it to lower its royalty base. Additionally, China’s Anti-Monopoly Guidelines on the Abuse of Intellectual Property Rights published by the Ministry of Commerce of the People's Republic of China (MOFCOM) in March of 2017 were passed in the end of 2018.[4] While already waiting to be formally executed, these Guidelines had received comments regarding reasonable royalties – especially the antitrust violation of licensing IPRs at unfairly high prices with 5 listed factors to consider whether there is abuse of dominant position.[5] By pointing out the dangers of regulating price following with potential harms to competition, one of the comments encourages the Guidelines to have the relevant factors in terms of determining unfairly high prices, such as the prices of comparable licenses instead of any other irrelevant indicators. B. European Commission (EC)[6] and its Per-Se Violation of Excessive Pricing While embracing free market economy and achieving social and political goals at the same time, EC prohibits unfairly high prices as unlawful per se by articulating “directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions” as abuse of market dominance.[7] The test to it started from the case United Brands (1978) which stipulates the difference between cost and price.[8] As the time came to the late 2000s, EC once said that “it takes no position on what a reasonable royalty is” in 2013 but later stated its option to act directly against excessive prices in 2016.[9] In 2017, the Copyright and Communication Consulting Agency/Latvian Authors Association (the AKKA/LAA case) was brought to the court for charging excessive fees for its exclusive right to license.[10] According to Article 267(a) of the Treaty on the Functioning of the European Union, the Court of Justice of the European Union (CJEU) shall have jurisdiction to give preliminary rulings concerning the interpretation of the Treaties. Given the questions referred to the CJEU in the AKKA/LAA case, the concept of excessive pricing therefore had the chance to be clarified further. [11] Three important principles established in this case are: (1) comparing the price at issue between the prices charged by other appropriate and sufficient comparators; (2) there is no threshold of what a royalty rate must be regarded as appreciably high, but a difference between rates must be both significant and persistent to be appreciable; (3) an analysis of fairness justification provided by the alleged dominant firm must be conducted.[12] The AKKA/LAA case reestablished and reaffirmed EC’s resolve to enforce prohibition of excessive pricing. As for the recent times, the Danish Competition Council found that the Swedish pharmaceutical distributor - CD Pharma had abused its dominant position by charging excessive prices for Syntocinon, ruling the price increase of 2000% unjustified.[13] The appeal against this decision is now pending. Many more excessive pricing cases are still ongoing within EU jurisdictions. C. The U.S. and its Hands-Off Approach towards Pricing U.S., on the other hand, never did and does not prohibit monopoly or excessive pricing, and has been warning the great dangers and potential harms to competition resulting from regulating price.[14] The long-established principle of not regulating price, however, was shaken by U.S. Federal Trade Commission (FTC)’s complaint against Qualcomm for conducting unfair methods of competition in 2017.[15] U.S. FTC filed a complaint against Qualcomm in 2017, alleging Qualcomm violating the Federal Trade Commission Act.According to the complaint, customers accepted elevated royalties that a court would not determine fair and reasonable due to Qualcomm’s unlawful maintenance of monopoly. However, the complaint fails to explain what a reasonable royalty is and why Qualcomm charges more than it is supposed to be charging.[16] Furthermore, the dissenting statement of this case states that the theory adopted by FTC required proof of Qualcomm charging unfairly high royalties where there was failure of proving reasonable royalty baseline in the case.[17] In January of 2019, this case finally kicked off in a California courtroom and the outcome of it will definitely have tremendous impacts on every stakeholder. Later in May 2019, the United States District Court for the Northern District of California found that Qualcomm violated the FTC Act. The case is still ongoing. D. Taiwan and its Unclear Attitude towards the Antitrust Issue of Reasonable Royalty So, where does Taiwan stand between prohibition of excessive pricing and the hands-off approach in the U.S.? In Taiwan, improperly setting, maintaining, or changing the price for goods or the remuneration for services as a monopolistic enterprise has long been unlawful per se since Taiwan’s Fair Trade Act (FTA) was enacted in 1991.[18] This unlawful per se violation is in fact Taiwan’s prohibition of excessive pricing. However, the attitudes of Taiwan Fair Trade Commission (TFTC) and the courts in Taiwan towards the antitrust issue of reasonable royalty can be switching. They have avoided the issue, left the issue for private contracting, resorted to Patent Act, and determined royalties for the involving parties. Antitrust cases involving the issue of reasonable royalty can be a matter of billion-dollar fines, tremendous costs of litigation, negative impacts on innovation and competition, and harms to consumers. Such important issue can no longer be neglected by Taiwan anymore. By focusing on the antitrust issue of reasonable royalty in Taiwan, this paper will begin with the past attitude and the current antitrust framework of reasonable royalty in Taiwan. Further, because Taiwan has been looking up to the U.S. and its patent law in terms of calculating reasonable royalty in patent infringement cases; this paper will then turn to the reasonable royalty approach in Taiwan and the U.S. respectively. Even though this paper does not support prohibition of excessive pricing, we hope the antitrust issue of reasonable royalty in any excessive pricing case in Taiwan will be properly and carefully dealt with. Therefore, based on the proposed methodologies in a 2016 paper[19], the core of this paper will be proposing a framework for Taiwan in order to give clearer directions on how to face the antitrust issue of reasonable royalty along with the potential violation of Article 9 of FTA. II. THE PAST ATTITUDE AND THE CURRENT ANTITRUST FRAMEWORK OF REASONABLE ROYALTY IN TAIWAN A. The RCA, Catrick, and Microsoft case - 1995 ~ 2003 TFTC’s attitude towards the antitrust issue of reasonable royalty had long been unclear. In TFTC v. Radio of Corporation of America (RCA)(1995), RCA settled with TFTC for the accusation of charging improper royalties.[20]In TFTC v. Microsoft (2002-2003), Microsoft settled with TFTC after 10 months being accused of conducting excessive pricing. [21] However, the details of both settlements were never published. In the Catrick case (1998), a U.S. firm named Catrick was accused of improperly charging royalties.[22] TFTC attempted to resort to Patent Act but Patent Act at that time was silent on calculation of royalties. To play safe, TFTC did not interpret FTA or determine a reasonable royalty. Instead, TFTC left the issue to be solved under the principle of freedom of contract and closed the investigation.[23] B. The CD-R Patent Pool Case – 2001~2015 1. Summary of the case Even being given 15 years of time, the antitrust issue of reasonable royalty still remained unsolved in the CD-R Patent Pool case (2001-2015). Upon the investigation from 1999, TFTC found that Philips Electronics NV (Philips) and other two companies had violated Article 10 of FTA with their unlawful concerted action and abuse of dominance in 2001.[24] Here is the background: The CD-R manufactures in Taiwan accounted for 80% of the global CD-R manufacturing output when the time the CD-R technologies were a worldwide industrial revolution. The price of CD-R was originally at around $60 per piece in 1990. It later went down to $0.20 per piece in 2000. However, the three enterprises in the case kept refusing to change the formula for calculating the license fee. Thus, the pricing issue here was that if the three monopolistic enterprises improperly maintained the formula for calculating the CD-R license fee by joint licensing and refusing to change the license fee even though the market conditions had changed drastically at that time.[25] After a series of appeals and retrials, TFTC again ruled that Philips violated Section 2 of Article 10 of FTA by abusing its dominant position and improperly maintaining the price for its jointly licensed technologies in 2015.[26] To everyone’s disappointment, TFTC again left the determination of reasonable royalty unsolved. 2. Fights over reasonable royalty between courts and TFTC The tricky thing is, administrative courts, TFTC, Intellectual Property Court of Taiwan (IP Court of Taiwan) held totally different positions in the CD-R case in terms of the antitrust pricing issue: a. Taipei High Administrative Court (2003) [27] The court reasoned that the license fees should be determined by competition and cost structure on principle. As a result, the determinants to reasonable royalties would be supply and demand in the market. b. TFTC Decision No.095045 (2006) [28] TFTC did not hold that the defendants’ pricing practice in violation of FTA. However, it stated its position in stepping in royalties - “Business value of patents varies due to maturity of technologies and market development. Therefore, patent holders should consider prices of final products, value of patents, and contributions made by licensees while determining reasonable royalties… It is inappropriate for the antitrust authority in Taiwan to step in royalties unless there is indication of illegal monopolization or cartel. “ c. Intellectual Property Court Appeal Case No.14 (2008) [29] IP Court of Taiwan incorporated the concept of fairness in its decision by saying – “courts could only adjust the royalty rates in consideration of fairness towards both parties and other relevant factors in the contract.” Further, the court also said that it was not within TFTC’s jurisdiction to determine the reasonableness of the license fee charged by Philips. d. TFTC Decision No. 098156 (2009)[30] By revealing the prices of CD-R output, shipment of CD-R, change of market conditions within 10 years, and the 60 times higher royalty revenues earned by Philips, Sony and Taiyo Yuden, TFTC found that the profits earned by the three defendants were beyond expectation and estimation. In conclusion, TFTC again held in its 2009 decision that the three defendants violated FTA by not giving opportunities to negotiate over the CD-R license fee upon the easily perceived market changes. e. Supreme Court of Taiwan, Case No.883 (2012) [31] After the long fights between courts and TFTC for 10 years, Sony and Taiyo Yuden had stopped fighting and their cases were affirmed in 2011. As for Philips, they enjoyed a huge turning point in 2012 because the Supreme Court of Taiwan abolished IP Court of Taiwan’s 2008 verdict and ruled that the governing laws of the contracts between the involving parties were Dutch laws. f. TFTC Decision No. 104027 (2015)[32] TFTC did not get defeated and reached another decision against Philips in 2015. In the reasoning, TFTC first clarified that market prices should be determined by competition and cost structure. Then it claimed to still have the role to rule that Philips had been improperly maintaining the license fee of CD-R through abuse of dominance, refusals to renegotiate and earning excessive profits. To everyone’s disappointment, TFTC still left the determination of reasonable royalty unsolved. C. TFTC v. Qualcomm Incorporated (Qualcomm) (2015 - 2018)[33] In 2017, TFTC ruled that Qualcomm violated Article 9(1) of FTA[34] by refusing to license, imposing no license no chips policy, and conducting exclusive dealing. As for the pricing issue in this case, it was argued if the license fees charged by Qualcomm were unreasonably high and if the fees should be based on value of patents instead of net prices of manufactured phones. TFTC did point out the pricing issue in its reasoning but did not say much further. Instead, TFTC commented in the decision that Qualcomm had been enjoying excessive profits and stated that license fee was a matter of freedom of contract and negotiation.[35] After a series of fights between TFTC and Qualcomm, both parties agreed to settle in August 2018.[36] The Administrative Decision No. 106094 issued by TFTC was vacated with the replacement of the settlement[37] which Qualcomm agreed to invest hundreds of millions in Taiwan and on other matters.[38] D. The Current Antitrust Framework of Reasonable Royalty in Taiwan The current antitrust framework of reasonable royalty in Taiwan in this paper is based on the latest version of Fair Trade Act of Taiwan which was amended in 2017 and the latest version of IP Guidelines of Taiwan which was amended in 2016.[39] There are three main steps in the current antitrust framework to deal with the reasonable royalty issue that suspiciously violates FTA in Taiwan. 1. Proper conducts pursuant to Intellectual Property Laws in Taiwan First, and most importantly, Article 45 of FTA excludes the application of FTA to all “proper conducts” pursuant to all IP Laws in Taiwan where TFTC does not give quite clear explanation of.[40] The reason behind such exclusion stated in the legislative rationale of Article 45 of FTA is problematic - “Copyrights, Trademarks, and Patents are monopoly rights endowed by IP laws. Therefore, FTA shall not apply to them by nature.” [41] 2. Guidelines on Technology Licensing Arrangements (IP Guidelines of Taiwan) Secondly, TFTC shall turn to review if IP Guidelines of Taiwan apply to any licensing practice in the case when it sees Article 45 of FTA not applicable.[42] IP Guidelines of Taiwan articulates a correct and fundamental principle while reviewing a technology licensing agreement – “TFTC does not presume market power resulted from owning a patent or know-how.”[43] Further, IP Guidelines of Taiwan do not articulate reasonable royalty or excessive pricing. Instead, the Guidelines make clear of the allowed and prohibited calculation methods for royalties. By recognizing the ease of calculation as efficiency, IP Guidelines of Taiwan basically allows the end product approach and the net sales approach to be applied in a technology licensing agreement as long as the licensed technology was indeed used by the licensee.[44] Notwithstanding, TFTC still has the power to find an antitrust violation upon finding of improper matters even if a licensor complies with Section C of Article 5 of IP Guidelines of Taiwan. [45] 3. Prohibited monopolistic conducts When neither Article 45 of FTA nor IP Guidelines of Taiwan applies to the case, the last step TFTC shall take towards reasonable royalty issue is to review if Section 2 of Article 9 of FTA applies - ” Monopolistic enterprises shall not engage in improperly setting, maintaining or changing the price for goods or the remuneration for services.” [46] Basically, it is the prohibition of excessive pricing in Taiwan. To be noticed, Article 9 of FTA can only be applied when there is one or more monopolistic enterprises involved. 4. Some issues under the current antitrust framework of reasonable royalty in Taiwan a. Proper conducts pursuant to all IP laws in Taiwan. Article 45 of FTA excludes the application of FTA to what so called “proper IP conducts.” Such exclusion is based on the idea that IPRs are monopoly rights – which is problematic.[47] The fact is - IPRs are exclusive rights instead of monopoly rights. IPRs do not necessarily confer monopoly power or induce more anticompetitive behaviors than other types of property. Moreover, exercising an IPR can be engaging in improper market conducts that lessens competition. In other words, what should be kept in mind is that a proper IP conduct may still possibly constitute an antitrust violation. b. The maybe-violation in IP Guidelines of Taiwan. IP Guidelines of Taiwan are basically friendly towards the end product and the net sales approaches for calculating royalties. However, Article 5 of the Guidelines still gives TFTC the power to find a “maybe” antitrust violation upon any improper matters. Such maybe violation makes the protection under IP Guidelines shaky and even not that useful. c. No such thing as excessive profit. One of the legislative reasons behind the prohibition of excessive pricing in Taiwan is that - “when a firm does not price its products based on reflection of the costs but intends to gain exorbitant profits, such improper pricing conduct would be the most effective way to exclude competition.” [48] Firstly, there is no such thing as an excessive or exorbitant profit in a free market economy when a price is determined by supply and demand which results in profits you earn accordingly. Secondly, instead of the profits, it should be the price or the pricing practice to be evaluated due to the purpose of excessive pricing violation. d. Missing harms to competition. Most important of all in any excessive pricing case – where are the harms to competition? It should be clear that unjustified profits are not what antitrust laws aim to punish but the anticompetitive market conducts that harm competition. Which is to say – if a monopolistic enterprise has been charging excessive prices through abuse of monopoly that generates harms to competition? With the ultimate goal of protecting the overall competition and consumers, there must be potential or actual harms to competition proven in any excessive pricing case. Such as higher prices, lower outputs, exclusion of competition, entry barriers, negative impact on innovation, or so. E. The Reasonable Royalty Approach under the Patent Act in Taiwan 1. Damages as reasonable royalty Article 97(1) of Patent Act of Taiwan lists three approaches for calculating damages in any event of patent infringement.[49] One of the approaches is the reasonable royalty approach.[50] The so-called reasonable royalty is the royalty the licensee would have paid if there had been a negotiation instead of an infringement. In practical, any profit earned by the licensee from the infringement is excluded from the damages while adopting such approach. Since the infringing licensee saved the costs of negotiation and the licensor spent extra costs on patent infringement litigation, it is also recognized that damages calculated by adopting the reasonable royalty approach can be more than the royalty the licensee would have paid.[51] 2. Determinants and principles in a hypothetical negotiation over royalty After all, the reasonable royalty approach assumes a hypothetical negotiation over royalty between the licensee and licensor. There are still controversies over the determinants and principles to be applied while adopting such approach. Various considerations would possibly lead to drastically different reasonable royalties just like the NT$10 million and NT$1 billion damages in the Philips v. Gigastorage case. [52] Koninklijke Philips NV (Philips) brought a patent infringement lawsuit against Gigastorage Corporation (Gigastorage, a Taiwan-based manufacturer) at the IP Court of Taiwan in 2014, alleging that Gigastorage had been infringing their Taiwanese patent from 2000 through 2015 by manufacturing and selling DVD related products. The pricing issue here is how to calculate the damages and compensation of unauthorized utilization of the patent involved where the calculation methods and considerations would make big differences. IP Court of Taiwan awarded NT$10.5 million as damages based on reasonable royalty approach in the first trial. However, the same court of different judges later ruled that the damages should be over NT$1 billion according to unjust enrichment. The case was brought to the Supreme Court of Taiwan in 2017. In September 2018, the NT$1 billion judgement was remanded and now the IP Court of Taiwan is thus responsible for a retrial.[53] Nevertheless, the two most common determinants to a reasonable royalty under this approach are – licensing history and comparable patents. Interestingly and importantly, these two determinants are also taken into consideration by several antitrust jurisdictions in the world while dealing with the issue of reasonable royalty. III. WHETHER TO REGULATE EXCESSIVE PRICING AND THE MONDERN REASONABLE ROYALTY APPROACH IN THE U.S. A. Whether to regulate excessive pricing? Supply and demand are two key factors that determine a price in a free market. Profits are usually what encourage innovation and attract firms doing businesses in the first place. There is no doubt that a firm sets a price it believes to maximize its profits – which is profit maximization rule in economics. When a monopoly tries to manipulate or disturb the market by setting a lower or higher price that does not go along with profit maximization rule, here are some possible consequences: (1) new entries in the market trying to share the profits; (2) consumers might switch to substitutes of the product in order to pay less; (3) monopoly might lose profits that it would earn otherwise. Simply saying, a free market usually responds to market changes quite well and can function accordingly without too much disruption. Regardless of the free market mechanism, there are still many voices discouraging the prohibition of excessive pricing due to the inherent dangers of regulating prices – such as discouraging investment in research and development activities, impairing innovation, and ultimately harming consumers.[54] Along with the antitrust jurisdictions that prohibit excessive pricing by law, there are studies showing that prohibition of excessive pricing may benefit the market or – the consumers. A 2015 research finds that: “when economies of scale and entry barriers imply a great likelihood of dominant firms not subjecting to regulation but capable of charging supra-competitive prices, excessive pricing regulation is then important for smaller markets.”[55] A study in 2017 further examines the competitive effects of the prohibition of excessive pricing by applying two competitive benchmarks – retrospective benchmark and contemporaneous benchmark to assess the price charged by a dominant firm excessive or not. The study finds that the two benchmarks restrain the dominant firm’s behavior but soften the firm’s behavior when its competing with a rival. By setting certain factors homogeneous, a retrospective benchmark for excessive pricing benefits consumers. While under different circumstances, consumers are worse off and inefficient entries are created. Overall, the study indicates that the competitive effects of prohibition of excessive pricing vary as we consider various factors – such as the nature of competition, the expected fines, incentive to invest in research and development (R&D), cost of litigation and more. [56] As a whole, there are still a great number of concerns about potential dangers of regulating price. However, whether to regulate excessive pricing or not, the fundamental question to ask is still – “how to determine a reasonable price to assess if the price at issue is excessive?” B. The Modern Reasonable Royalty Approach in the U.S. U.S. antitrust agencies do not prohibit excessive pricing. An IPR holder is free to charge a monopoly price just as a monopoly is free to earn its monopoly profits as long as the monopoly price and profits are not resulted from anticompetitive conducts that violate antitrust laws in the U.S. While saying that, U.S. still has a reasonable royalty approach developed under its patent law which is the law Taiwan has copied a lot from. [57] There are different methodologies for the reasonable royalty approach in the U.S., the most common one would be the hypothetical negotiation which was matured from Georgia-Pacific Corp. v. United States Plywood Corpin 1971 (Georgia-Pacific case), ruling that the proper damages in a patent infringement case as – “the amount that a licensor and the infringer would have agreed upon.” By adopting this hypothetical negotiation framework, the case eventually developed a list of 15 determinants as to a reasonable royalty: [58] (1) The royalties received by the patentee for the licensing of the patent in suit, proving or tending to prove an established royalty. (2) The rates paid by the licensee for the use of other patents comparable to the patent in suit. (3) The nature and scope of the license, as exclusive or non-exclusive; or as restricted or non-restricted in terms of territory or with respect to whom the manufactured product may be sold. (4) The licensor's established policy and marketing program to maintain his patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly. (5) The commercial relationship between the licensor and licensee, such as, whether they are competitors in the same territory in the same line of business; or whether they are inventor and promotor. (6) The effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of his non-patented items; and the extent of such derivative or convoyed sales. (7) The duration of the patent and the term of the license. (8) The established profitability of the product made under the patent; its commercial success; and its current popularity. (9) The utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results. (10) The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefits to those who have used the invention. (11) The extent to which the infringer has made use of the invention; and any evidence probative of the value of that use. (12) The portion of the profit or of the selling price that may be customary in the particular business or in comparable businesses to allow for the use of the invention or analogous inventions. (13) The portion of the realizable profit that should be credited to the invention as distinguished from non-patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer. (14) The opinion testimony of qualified experts. (15) The amount that a licensor (such as the patentee) and a licensee (such as the infringer) would have agreed upon (at the time the infringement began) if both had been reasonably and voluntarily trying to reach an agreement; that is, the amount which a prudent licensee who desired, as a business proposition, to obtain a license to manufacture and sell a particular article embodying the patented invention would have been willing to pay as a royalty and yet be able to make a reasonable profit and which amount would have been acceptable by a prudent patentee who was willing to grant a license. The U.S. reasonable royalty approach and the calculation of reasonable royalty have been evolving since then. The Federal Circuit in a 2011 case held that the long-used and criticized 25 percent rule of thumb is fundamentally flawed for determining a baseline royalty rate in a hypothetical negotiation.[59] The rule suggests that 25% of the expected profits for the product that incorporates the IP at issue as a baseline royalty rate. Practically, the profits earned by the licensee and the revenues of the product are still often taken into consideration nowadays while applying the U.S. reasonable royalty approach. Further, the Ninth Circuit modified some factors in Microsoft Corp. v. Motorola Inc. (2012) which was a case involved with reasonable and non-discriminatory (RAND) commitment, standard essential patents (SEPs), and patent pool. [60] This case raised some important factors to determine a RAND royalty, such as RAND commitment and its purposes, SEPs’ contribution and importance, alternatives of SEPs to the adopted standard, and so on. Comparable patents play a very critical factor in this case in terms of calculating a RAND royalty. Also, it is important to notice that the function of a RAND commitment limits a SEP licensor to royalties that reflect their ex ante values instead of the incremental monopoly power provided by the standard.[61] In Ericsson, Inc. v. D-Link Systems, Inc. (2014), a modified version of the 15 factors was adopted after the Federal Circuit held that – not every factor from the 15 factors in Georgia-Pacific will apply to every case, and courts must instruct the jury on factors that are relevant in the case. Also, the burden of proof is on the implementer (or, the antitrust authority in an excessive pricing case) to establish a baseline royalty with evidence. That royalty then must be assessed to determine if it is excessive. [62]By adopting incremental value approach and incorporating apportionment, the Federal Court here provides a more complete guidance on how to calculate royalties for patents on RAND terms:[63] (1) Importance of RAND commitment; (2) Apportionment of patented features: the royalty for the patented technology must be apportioned from the value of the standard as a whole; (3) Incremental value approach: the royalty must be based on the incremental value of the invention, instead of any value added by the standardization of the invention or the standard itself. Lastly, two factors that were not often discussed while determining a reasonable royalty were applied inPrism Technologies LLC v. Sprint Spectrum L.P. (2017) - previous settlement agreements and cost savings though infringement.[64] In conclusion, the modern reasonable royalty approach under U.S. patent law was evolved from the adopted 15 factors in Georgia Pacific case. The approach then has been developing along with changes of law, development of technology, adoption of SEPs, RAND and FRAND commitments, and more other relevant factors. IV. A PROPOSED ANTITRUST FRAMEWORLK OF REASONABLE ROYALTY FOR TAIWAN Having articulated the past attitude and the current antitrust framework of reasonable royalty in Taiwan, we have pointed out some misunderstandings in the current framework. Having addressed the reasonable royalty approaches under the patent laws in Taiwan and the U.S., we also have found similarities in between – the hypothetical negotiation framework and relevant determinants. Even though there are concerns against prohibition of excessive pricing due to potential dangers of regulating price and supports towards ultimate protection of free competition, TFTC and the courts in Taiwan are still required by law to apply the prohibition of excessive pricing against IPRs for the current time being. Therefore, the most important section and the core of this paper now has come forward – which is a proposed antitrust framework composed of possible methodologies and clearer guidance for Taiwan to deal with the antitrust issue of reasonable royalty in an excessive pricing case. The proposed framework is based on the proposed methodologies in a 2016 paper[65] - which is to apply the hypothetical negotiation framework under U.S. patent law to determine a reasonable royalty or a competitive benchmark in an excessive pricing case. By applying the most relevant factors and adhering to important and correct principles in the case, a reasonable royalty as a baseline is thus determined to evaluate if the price at issue is excessive. Before articulating the proposed framework in a more detailed way, it is important to notice some basic differences between reasonable royalty in a patent infringement case and an excessive pricing case: Table 1 Reasonable Royalty in between a Patent infringement Case and an Excessive Pricing Case Reasonable Royalty in an Excessive Pricing Case Reasonable Royalty in a Patent Infringement Case Base Country Countries that prohibit excessive pricing. U.S. Case Type Antitrust case Patent infringement case Governing Law Antitrust (competition) law Patent law Prohibited Action A prohibited act of charging unfairly high price through abuse of monopoly. A prohibited act of unauthorized making, using, offering, or selling any patented invention. The Reasonable Royalty Issue Through determining a reasonable royalty to evaluate if a firm is charging excessive royalty through abuse of monopoly. Through determining a reasonable royalty to establish damages/compensation for the act of patent infringement. Proof of Harm Having found excessive pricing, competitive harms should be proved to establish an excessive pricing violation. Harm is proved after determining the reasonable royalty. Having proven the act of patent infringement, damages will then be determined based on reasonable royalty. Harm is proved to exist before calculating the damages. Negotiation There was negotiation over royalty before the lawsuit starts. There sometimes had no negotiation over royalty. Reasonable Royalty Approach Apply relevant factors to determine a reasonable royalty, then compare it with the price at issue to decide if the firm is charging excessive price through abuse of monopoly. Apply hypothetical negotiation framework to determine the royalty the licensor and the infringer would have agreed upon if there had been a negotiation instead of an infringement. Relevant Factors There are multiple and various factors applied in different countries, often not systematic or relevant. The 15 factors evolved from Georgia-Pacific, and some modified and new factors developed later on. A. Step 1 – Important Principles to Keep in Mind Regarding the Antitrust Issue of Reasonable Royalty. 1. No presumption of monopoly power: Ownership of IPRs does not necessarily confer monopoly power. 2. IP conducts may possibly constitute antitrust violations: Enforcing IPRs or any seemingly proper IP conduct may still possibly constitute an antitrust violation, so that they shall not be excluded from the application of FTA. 3. No such thing as excessive profit in free market economy: It is the pricing practice conducted by a monopolistic enterprise that should be evaluated in an excessive pricing case, instead of the profits the enterprise earns. 4. Harm to competition is and should be the key to establish an antitrust violation under Article 9 of FTA: Simply charging a perceived excessive price or earning some unjustified profits does not automatically constitute an antitrust violation. It is the competition and consumers that we should protect in terms of any excessive pricing case. Thus, harms to competition and consumers should be proved – such as lower outputs, entry barriers, and negative impacts on innovation or R&D activities. B. Step 2 – Compliance with Article 45 of FTA & IP Guidelines of Taiwan. 1. Firstly, all proper conducts pursuant to all IP laws in Taiwan are excluded to the application of FTA even though there is no clear explanation of what would be proper IP conducts. 2. If Article 45 of FTA does not apply in the case, we should turn to IP Guidelines of Taiwan to see if the involved market conducts or pricing practices would violate the Guidelines. If the Guidelines do not apply here, then we shall turn to Step 3 of the proposed framework. C. Step 3 – If it is a Potential Excessive Pricing Case? Section 2 of Article 9 of FTA articulates - “Monopolistic enterprises shall not engage in improperly setting, maintaining or changing the price for goods or the remuneration for services.[66]” 1. There must be a monopolistic enterprise. 2. The prices of goods or services or the pricing practices involved are reasonably challenged by the implementers or TFTC. [67] D. Step 4 – When would a hypothetical negotiation have taken place? When it is a potential excessive pricing case under Section 2 of Article 9 of FTA, it is time to apply the hypothetical negotiation framework under patent law to determine a reasonable royalty within antitrust framework. While the first thought we come up with is usually “how much the parties would have agreed upon,” what we often ignore is that – “when would a hypothetical negotiation have happened? “The timeframe of the hypothetical negotiation is in fact highly related to what relevant factors we should consider in terms of determining a reasonable royalty. Such timeframe issue thus could cause huge impacts on the amount of damages in a patent infringement case and affect the competitive benchmark in an excessive pricing case. More clarifications are as follows: 1. In a patent infringement case:[68] a. Pure ex ante approach: By assuming the parties would have negotiated over the royalty before the infringement began, such approach reflects an ex ante negotiation in the absence of infringement based on the information available before the infringement. Two supporting reasons are: (1) preservation of incentives; (2) avoidance or lowering the cost of patent holdup.[69] b. Pure ex post approach: This approach sets the negotiation reached on some later date, such as the date of judgement or any time after the infringement. Such approach could possibly provide more available and provable information to determining a royalty but could also give the patentee more bargaining power when the patentee is holding an injunction against the infringer. Figure 1 Timeframes of the Hypothetical Negotiation Applying Pure Ex Ante Approach and Pure Ex Post Approach c. Contingent Ex Ante Approach: Pros and concerns when applying pure ex ante and pure ex post approaches are out there to be noted. While a proposed approach claims to address the issues of patent holdup and bargaining power at the same time – which is called contingent ex ante approach. This approach sets the negotiation prior infringement reached contingent on the ex post information, arguing that ex post information provides a better measure for the true value of the patented technology. Further, it is said to be able to take new and changed circumstances into account in every individual infringement case. Here is a simple example presented in the paper:[70] (1) A $500,000 royalty might be agreed upon based on the parties’ expectation that the infringer would earn $1 million above what it would earn if it used the next-best available non-infringing patent. (2) At the date of judgement, the infringer is proven to earn $1.5 million instead of $1 million. This $1.5 million earning would be the ex post information applied in an ex ante negotiation. On the other hand, if the proven earning is only $500,000, then the royalty the parties might have agreed upon would be lower. (3) By applying contingent ex ante approach, it is argued that the patent hold-up would be avoided and the bargaining power between the parties would be balanced. Figure 2 Timeframes of the Hypothetical Negotiation Applying Contingent Ex Ante Approach 2. In an excessive pricing case: Applying the hypothetical negotiation framework under patent law in an excessive pricing case is much more difficult on one matter – the timeframe discussed above. Some important reasons are as follow: (1) Excessive pricing cases involve comparing a competitive benchmark with the price at issue, yet the prices in a case could be changing over time. (2) There were already negotiations over royalty before an excessive pricing lawsuit starts. (3) Involvement of FRAND and SEPs only make it more complicated to determine a reasonable royalty while facing the timeframe issue. E.g. the timing of a patent’s incorporation into a standard is critical and affects the value of the invention. Figure 3 Excessive Pricing Case and the Timeframe Issue E. Step 5 – If there are FRAND or RAND terms? Royalties negotiated on FRAND or RAND terms (FRAND royalties) can be and are usually different from those without. FRAND royalties may involve the following factors which often consequently affect royalties in real world: 1. FRAND obligations and terms: such as fairness, royalty free, grant back provision, exclusivity and other reciprocal terms. 2. Timing of the establishment of a standard: A patent may exist before the establishment of an industrial standard. As this patent is considered essential to a standard and also is included in such standard, the value of such patent – SEP usually goes up.[71] 3. Cooperation between SEP holders: the number of SEP holders and the number of SEPs included in a standard can be influential. 4. Other factors: standard setting organizations’ policies, threat of injunction, patent hold-up and hold-out, royalty stacking, other available and comparable technologies, and relationship between licensors and licensees. F. Step 6 – Consider the Most Relevant Factors. No matter what approach or timeframe of hypothetical negotiation gets adopted in an excessive pricing case, the most relevant factors to consider in determining a reasonable royalty are as follow: 1. Comparable patents The best potential non-infringing alternatives should be the top determinant. What we usually consider as alternatives here are the existing patents in the marketplace since it would be impractical to include expired or invalid patents as comparable patents. But if we take the issue of the timeframe of a hypothetical negotiation into consideration, the status of the patents could be different – which means the hypothetical negotiation could have happened when there were more or less comparable patents. Undoubtedly, comparability is hard to judge. Loads of factors have been taken into account – technical and economic standpoints, the underlying technology, timing of the licensing, previous settlements or litigations, and other more. As noted here, comparable patents are provided as evidence to determining a reasonable royalty – not to its admissibility. Further, here are more difficulties while looking for comparable patents: a. Lots of technology-related royalties nowadays are negotiated on a patent portfolio basis using the end-user device as the royalty base. Both end-user based and portfolio based calculations make it harder to extract the value of an individual patent. b. Cross-licensing or business relationships are sometimes built in exchange of patent licensing. It means that there sometimes has no cash payment involved to know the values of patents. c. Should the allegedly comparable patents cover foreign patents? 2. FRAND royalties: a. FRAND or RAND commitment and its importance. b. Number of SEPs and number of SEP holders in a standard setting. c. Proper apportionment: By the reason that not all patents are created equal or of the same value, the value of an individual patent’s contribution to the standard and the end product is a critical factor when determining a FRAND royalty. As noted here for clarification, even though the Federal Circuit in the famous Ericsson v. D-Link case stated that a FRAND royalty should not include the value that a technology gains from simply being included in a standard, it should not be interpreted as a complete exclusion of any of a standard’s value. When a patented technology in fact creates values for a standard due to its inclusion, these values should definitely be considered as contribution and an important factor.[72] G. Step 7 – Consider Other Factors 1. Other factors may possibly be considered a. The terms and scope of the licensing agreement, as exclusive, non-exclusive, restrictive, or non-restrictive. b. The nature and benefits of the technology or invention. c. Licensor’s monopoly power, and its policies or programs to maintain or preserve such power. d. Licensing history between the parties, and between the licensor and other firms. e. Investments made to implement the technology or the standard. f. Barriers to entry, it could be legal barriers, exclusive agreements, economies of scale, or network effect.[73] As for antitrust of excessive pricing in Taiwan, a paper suggests that entry barriers should be one of the keys to determine if TFTC should step in. That is to say - when there are entry barriers delaying or barring new entries in a market, TFTC should possibly have jurisdiction and a case according to the types of the barriers. g. Royalty stacking and patent hold-up and hold-out. h. Smallest saleable component rule: Institute of Electrical and Electronics Engineers (IEEE) amended its patent policy in 2015 and included the smallest saleable Compliant Implementationas an important consideration in terms of determining a reasonable royalty.[74] 2. Factors not recommended to be considered. a. Profits earned from charging the allegedly excessive royalty. b. The profitability, commercial success, popularity, advantages, utilities, and the sales of the patented products. c. The value of the pure adoption of the standard. d. Commercial and business relationships involved. e. Other non-competition, non-patent-related, or pure business factors. H. Step 8– Compare the Reasonable Royalty to the Alleged Excessive Price 1. The determined reasonable royalty is a baseline or what we call a competitive benchmark. It should not be a minimal royalty a patent owner can charge. 2. As for practicality, it is allowed to be more than just reasonable royalty to be compensated to the patent owner in a patent infringement case. Just like a firm can charge a price more than the cost of its product. Therefore, the price at issue should not be necessarily excessive when the determined reasonable royalty is greater than the alleged excessive price. V. CONCLUSION Excessive pricing cases involving the antitrust issue of reasonable royalty can be a matter of tremendous cost of litigation, fines of billion dollars, and unimaginable potential harms to competition. The great dangers involved through regulating price can lead to negative impacts on innovation, industries, and consumers - consequently to the ultimate failure of protection of competition. Putting aside the doubts about the prohibition of excessive pricing, I respectfully propose an antitrust framework of reasonable royalty in this paper with a sincere goal to help Taiwan with the issue of reasonable royalty in any excessive pricing case in the future. Lastly, I sincerely address the most essential and ultimate principle of antitrust here, again - it is and should always be the competition that antitrust laws and agencies aim to protect, not competitors, prices or only the consumers.[75] [1] Anti-Monopoly Law of the People’s Republic of China, Law Info China, http://www.lawinfochina.com/display.aspx?lib=law&id=0&CGid=96789 (last visited Aug. 6, 2019); The Antimonopoly Act, Japan Fair Trade Commission, http://www.jftc.go.jp/en/legislation_gls/amended_ama09/amended_ama15_01.html(last visited Mar.9, 2018); Monopoly Regulation and Fair Trade Act, Fair Trade Commission of Korea, http://www.moleg.go.kr/english/korLawEng?pstSeq=54772(last visited Aug. 6, 2019); Fair Trade Act, Fair Trade Commission of Taiwan, https://www.ftc.gov.tw/law/EngLawContent.aspx?lan=E&id=29 (last visited Mar.9, 2018). [2] Anti-monopoly Law of the People's Republic of China §17(1), available at http://www.china.org.cn/government/laws/2009-02/10/content_17254169.htm (last visited Mar.12, 2018). [3]Huawei Technologies Co. v. InterDigital Technology Co., Guangdong High Court Decision No.306 (2013), available at http://www.mlex.com/China/Attachments/2014-04-17_BT5BM49Q967HTZ82/GD%20verdict.pdf (last visited Mar.9, 2018);CLEARY GOTTLIEB STEEN & HAMILTON LLP, China’s NDRC Concludes Qualcomm Investigation, Imposes Changes in Licensing Practices (Mar. 16, 2015), https://www.clearygottlieb.com/-/media/organize-archive/cgsh/files/publication-pdfs/chinas-ndrc-concludes-qualcomm-investigation-imposes-changes-in-licensing-practices.pdf (last visited Mar.9, 2018). [4] THE MINISTRY OF COMMERCE OF THE PEOPLE’S REPUBLIC OF CHINA, Full text of the Draft of the Anti-Monopoly Guidelines on the Abuse of Intellectual Property Rights (2017), http://fldj.mofcom.gov.cn/article/zcfb/201703/20170302539418.shtml (last visited Mar. 12, 2018). [5]Bruce Kobayashi, Douglas Ginsburg, Joshua Wright & Koren Wong-Ervin,Comment of the Global Antitrust Institute, Antonin Scalia Law School, George Mason University, on the Anti-Monopoly Commission of the State Council's Anti-Monopoly Guidelines against Abuse of Intellectual Property Rights, GEORGE MASON LAW & ECONOMICS RESEARCH PAPER, No.17-19, available at https://ssrn.com/abstract=2952414 (last visited Mar.12, 2018). [6] European Commission is the competition authority within European Union. [7] TheTreaty on the Functioning of the European Union §102(a), available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2016:202:FULL&from=EN (last visited Mar.12, 2018). [8] United Brands Company and United Brands Continentaal BV v Commission of the European Communities, Case 27/76 (1978). [9] Antitrust: Commission sends Statement of Objections to Motorola Mobility on potential misuse of mobile phone standard-essential patents- Questions and Answers, European Commission, http://europa.eu/rapid/press-release_MEMO-13-403_en.htm (last visited Mar.12, 2018); see also Protecting consumers from exploitation-Chillin’ Competition Conference, Brussels, 21 November 2016, European Commission, https://ec.europa.eu/commission/commissioners/2014-2019/vestager/announcements/protecting-consumers-exploitation_en (last visited Mar.12, 2018). [10] Autortiesību un komunicēšanās konsultāciju aģentūra / Latvijas Autoru apvienība v. Konkurences padome, C-177/16(2017). [11] TheTreaty on the Functioning of the European Union §267(a), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:12008E267:en:HTML (last visited Mar.13, 2018). [12] Miranda Cole,Kevin Coates&Siobhan L.M. Kahmann, Welcome clarifications by the EU Court on the concept of excessive pricing, Covington & Burling LLP - Inside Tech Media (Sep. 15, 2017), https://www.insidetechmedia.com/2017/09/15/welcome-clarifications-by-the-eu-court-on-the-concept-of-excessive-pricing/ (last visited Mar.13, 2018). [13] Martin André Dittmer & Sofie Kyllesbech Andersen, Recent decisions on excessive pricing, abuse of dominance, cartel penalties and gun jumping (2018), https://www.internationallawoffice.com/Newsletters/Competition-Antitrust/Denmark/Gorrissen-Federspiel/Recent-decisions-on-excessive-pricing-abuse-of-dominance-cartel-penalties-and-gun-jumping (last visited Jan. 17, 2019). [14] Michal S. Gal, Monopoly Pricing as an Antitrust Offense in the U.S. And the EC: Two Systems of Belief About Monopoly? ANTITRUST BULLETIN, 49, 343-384 (2004), available athttps://ssrn.com/abstract=700863 (last visited Mar.14, 2018). [15] U.S. Federal Trade Commission v. Qualcomm Incorporated ( N.D. Cal. Filed Jan. 17, 2017), available at https://www.ftc.gov/system/files/documents/cases/170117qualcomm_redacted_complaint.pdf (last visited Mar. 14, 2018). [16] Federal Trade Commission v. Qualcomm Incorporated, Case No. 5:17-cv-00220-LHK (D. Northern District of California, filed Feb.1, 2017). [17] FAIR TRADE COMMISSION, Dissenting Statement of Commissioner Maureen K. Ohlhausen In the Matter of Qualcomm, Inc. (Jan. 17,2017), https://www.ftc.gov/system/files/documents/cases/170117qualcomm_mko_dissenting_statement_17-1-17a.pdf (last visited Mar. 2, 2018). [18] Taiwan Fair Trade Act §9(1) (2017), available at: http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=J0150002 (last visited Mar. 2, 2018). [19] Bruce H. Kobayashi, Douglas H. Ginsburg, Joshua D. Wright, and Koren W. Wong-Ervin, “Excessive Royalty” Prohibitions and the Dangers of Punishing Vigorous Competition and Harming Incentives to Innovate, CPI ANTITRUST CHRONOCLE, 4(3) (2016). [20] Kung-Chung Liu, Interface between IP and Competition Law in Taiwan, THE JOURNAL OF WORLD INTELLECTUAL PROPERTY, 8(6), 735–760 (2005). [21] Pei-Fen Hsieh, Antitrust Regulatory Measures Under the trend towards Bureaucratic Regulation- A Study on Consent Decree, FAIR TRADE QUARTERLY, 13(1), 166 (2005). [22] Taiwan Fair Trade Commission, Meeting Minutes No.352 (1998). [23] Hong Xuan, On principles in tackling technology license and market competition, 112-113 (2008). [24] TAIWAN FAIR TRADE COMMISION, Meeting Minutes No.480 of Taiwan Fair Trade Commission (2001), https://www.ftc.gov.tw/upload/upload-90R480_REC.txt (last visited Feb. 7, 2018). [25] Kung-Chung Liu & Vick Chien, Analysis of and Comments on CD-R-related Cases: Focusing on Competition Law and Patent Compulsory Licensing Issues, FAIR TRADE QUARTERLY, 17(1), 2 (2005). [26] Sony and Taiyo Yuden did not appeal against the administrative decisions in 2010; therefore their cases were affirmed before 2015. See TAIWAN FAIR TRADE COMMISSION, Administrative Decision No.104027 (2015), https://www.ftc.gov.tw/uploadDecision/269b6dff-a0fc-46a0-8512-ca5f716732bb.pdf (last visited Feb. 7, 2018). [27] Taipei High Administrative Court, Philips Electronics NV v. TFTC, Decision No. 00908 (2003). [28] TAIWAN FAIR TRADE COMMISSION, Administrative Decision No. 095045 (2006), https://www.ftc.gov.tw/uploadDecision/2005302-0950426_002_095d045.pdf (last visited Feb. 23, 2018). [29] Taiwan Intellectual Property Court Appeal Case No.14 (2008), https://law.judicial.gov.tw/FJUD/data.aspx?ro=10&q=cd8bdbb8d80f8d587805c863b2e64c55&gy=jcourt&gc=IPC&sort=DS&ot=in (last visited Aug. 6, 2019). [30] TAIWAN FAIR TRADE COMMISSION, Administrative Decision No. 098156 (2009) http://www.ftc.gov.tw/uploadDecision/faed94a8-34ce-4f8e-b59a-239a9eaece1d.pdf (last visited Feb. 23, 2018). [31] Supreme Court of Taiwan, Case No.883 (2012), https://law.judicial.gov.tw/FJUD/data.aspx?ro=0&q=033765ef814495b27d346fcbd9f38606&gy=jcourt&gc=TPS&sort=DS&ot=in (last visited Aug. 6, 2019). [32] TAIWAN FAIR TRADE COMMISSION, Administrative Decision No. 104027 (2015) https://www.ftc.gov.tw/uploadDecision/269b6dff-a0fc-46a0-8512-ca5f716732bb.pdf (last visited Feb. 26, 2018). [33] TAIWAN FAIR TRADE COMMISSION, Administrative Decision No.106094 (2017) https://www.ftc.gov.tw/uploadDecision/561633e4-42bd-4a4f-a679-c5ae5226966b.pdf (last visited Mar. 2, 2018). [34] Fair Trade Act of 2017 §9(1), available at: http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=J0150002 (last visited Mar. 2, 2018). [35] id, at Page 61-62. [36] Settlement between TFTC and Qualcomm, TAIWAN FTC NEWSLETTER, August 10, 2018, https://www.ftc.gov.tw/internet/main/doc/docDetail.aspx?uid=126&docid=15551 (last visited Nov. 30, 2018). [37] TAIWAN FAIR TRADE COMMISSION, Record of Commission Meeting No. 1396 (Nov. 2018), https://www.ftc.gov.tw/upload/b0aa3b61-d0e7-41c4-b6a0-b1e6a472ee04.pdf (last visited Nov. 30, 2018). [38] TAIWAN FAIR TRADE COMMISSION, Qualcomm’s Investment Plan under the Settlement, (Oct. 2018), https://www.ftc.gov.tw/upload/ee937bcf-68b9-4751-b2da-b636c46b0faa.pdf (last visited Nov. 30, 2018). [39] The latest amendment of the Fair Trade Act of Taiwan was proposed in the October of 2018, waiting to be reviewed. https://join.gov.tw/policies/detail/898e30a4-1ee8-491b-8c5a-5fbdbb5973f9 (last visited Jan. 18, 2019). [40] See Fair Trade Act of 2017 §45:”No provision of this Act shall apply to any proper conduct in connection with the exercise of rights pursuant to the provisions of the Copyright Act, Trademark Act, Patent Act or other Intellectual property laws.”; available at http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=J0150002 (last visited Mar. 5, 2018); also see FAIR TRADE COMMISSION, Administrative Statement No. 02678 (2000), https://www.ftc.gov.tw/internet/main/doc/docDetail.aspx?uid=225&docid=431 (last visited Mar.25, 2018). [41] Legislative Rationales of Fair Trade Act of 1991, available at https://www.ftc.gov.tw/law/LawContent.aspx?id=FL011898 (last visited Aug. 6, 2019). [42] Guidelines on Technology Licensing, Fair Trade Commission, https://www.ftc.gov.tw/internet/main/doc/docDetail.aspx?uid=163&docid=227 (last visited Aug. 6, 2019). [43] id, §3. [44] id, §5(C): “Stipulations that, for ease of calculation, fees for licensed technology that is part of a manufacturing process or that subsists in component parts are to be calculated on the basis of the quantity of finished goods manufactured or sold that employ the licensed technology, or the quantity of raw materials or component parts used that employ the licensed technology, or the number of times such materials or parts are used in the manufacturing process.”; see also §6(L): “Requirements that the licensee pay licensing fees based on the quantity of a particular type of good manufactured or sold irrespective of whether the licensee used the licensed technology.” [45] id, §5: “The following kinds of technology licensing arrangement stipulations do not intrinsically violate the provisions of the Act on restraint of competition or unfair competition, with the exception of those improper matters to be found after reviewed in accordance with Point 5(C) and 5(D)…” [46] Fair Trade Act §9(2): “Monopolistic enterprises shall not engage in any one of the following conducts… improperly set, maintain or change the price for goods or the remuneration for services,” available at http://law.moj.gov.tw/Eng/LawClass/LawAll.aspx?PCode=J0150002 (last visited Mar. 8, 2018). [47] Douglas H. Ginsburg & Joshua D. Wright, Whither Symmetry? Antitrust Analysis of Intellectual Property Rights at the FTC and DOJ, COMPETITIN POLICY INTERNATION, 9 (2) (2013). [48] Id. [49] id, Section 1-3 of § 97(1). [50] id, Section 3 of §97(1) :”the amount calculated on the basis of reasonable royalties that may be collected from exploiting the invention patent being licensed.”; see also The 2013 Amendment to Patent Act of Taiwan, List of Amendments to Patent Act of Taiwan, http://www.6law.idv.tw/6law/law2/專利法歷年修正條文及理由.htm#_%EF%BC%8E12%EF%BC%8E%E4%B8%80%E7%99%BE%E9%9B%B6%E4%BA%8C%E5%B9%B4%E4%BA%94%E6%9C%88%E4%B8%89%E5%8D%81%E4%B8%80%E6%97%A5%EF%BC%88%E5%85%A8%E6%96%87%E4%BF%AE%E6%AD%A3%EF%BC%89 (last visited Mar. 8, 2018). [51] id. [52] Intellectual Property Court of Taiwan Case No.38 (2014); see also Intellectual Property Court of Taiwan Case No.24 (2017); Chung-Lun Shen, Taiwan Supreme Court to Clarify Distinction between Patent Damages and Unjust Enrichment: Koninklijke Philips N. V. v. Gigastorage Corporation, IP OBSERVER, 18 (2017). [53] <與飛利浦專利訴訟 國碩扳回一城>，經濟日報UDN，https://money.udn.com/money/story/5607/3393179 (last visited Jan. 19, 2019). [54] Bruce H. Kobayashi, Douglas H. Ginsburg, Joshua D. Wright, and Koren W. Wong-Ervin, “Excessive Royalty” Prohibitions and the Dangers of Punishing Vigorous Competition and Harming Incentives to Innovate, CPI ANTITRUST CHRONOCLE, 4(3) (2016). [55] Reena Das Nair & Pamela Mondliwa, Excessive Pricing revisited: what is a competitive price?, Presented at Conference: 1st ANNUAL COMPETITION AND ECONOMIC REGULATION (ACER) WEEK, SOUTHERN AFRICA (2015), https://www.researchgate.net/profile/Reena_Das_Nair/publication/290440699_Excessive_Pricing_revisited_what_is_a_competitive_price/links/5698d5f408ae34f3cf2070dd/Excessive-Pricing-revisited-what-is-a-competitive-price.pdf (last visited June. 5, 2018). [56] David Gilo & Yossi Spiegely, The Antitrust Prohibition of Excessive Pricing, INTERNATIONAL JOURNAL OF INDUSTRIAL ORGANIZATION, Elsevier, vol. 61(C)(2018). [57] 35 U.S. Code § 284. [58] Georgia-Pacific Corp v. United States Plywood Corp, 318 F. Supp. 1116 (NY.S.D.N.Y. 1970). [59] Uniloc USA, Inc. v. Microsoft Corp., 632 F. 3d 1292 (Fed. Cir., 2011). [60] Microsoft Corp. v. Motorola Inc,696 F.3d 872 (9th Cir. 2012). [61] William H. Page,Judging Monopolistic Pricing: F/RAND and Antitrust Injury, TEXAS INTELLECTUAL PROPERTY LAW JOURNAL, 22, 181-208 (2014), available at http://scholarship.law.ufl.edu/facultypub/588 (last visited Mar. 28, 2018). [62] Ericsson, Inc. v. D-Link Systems, 773 F.3d 1201 (Fed.Cir. 2014). [63] Anne Layne-Farrar & Koren W. Wong-Ervin, An Analysis of the Federal Circuit's Decision in Ericsson v. D-Link,Competition Policy International, CPI Antitrust Chronicle, (1) (2015), available at https://ssrn.com/abstract=2669269 (last visited Mar. 29, 2018), see also Huntern Shu, Determination of royalties in Ericsson v. D-Link, Science & Technology Policy Research and Information Center (STPI) (2015), http://iknow.stpi.narl.org.tw/post/Read.aspx?PostID=10945 (last visited Mar. 29, 2018). [64] Prism Technologies LLC v. Sprint Spectrum L.P., No.16-1456 (Fed. Cir. 2017). [65] GINSBURG, KOBAYASHI, WONG-ERVIN & WRIGHT ET AL., supra note 19. [66] Id. [67] Fair Trade Act §7. [68] Norman V. Siebrasse &Thomas F. Cotter, A New Framework for Determining Reasonable Royalties in Patent Litigation, FLORIDA LAW REVIEW, 68 (2016), available at : http://scholarship.law.ufl.edu/flr/vol68/iss4/1 (last visited Mar. 29, 2018). [69] U.S. FEDERAL TRADE COMMISSION, The Evolving IP Marketplace: Aligning Patent Notice and Remedies With Competition (2011), https://www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf (last visited Jan. 23, 2019). [70] id. at 21. [71] Standard-essential patents, COMPLETION POLICY BRIEF, 5 (2014). [72] id. at Page17. [73] Ma, Tay-cheng,Regulation of the Exploitative Abuse: Policy Initiative and Practical Dilemma, Fair Trade Quarterly 17(1) (2009). [74] INSTITUTE OF ELECTRICAL AND ELECTRINICS ENGINEERS, IEEE-SA STANDARDS BOARD BYLAWS (2015),https://standards.ieee.org/about/policies/bylaws/sect6-7.html (last visited Jan. 22, 2019). [75] Douglas H. Ginsburg & Joshua D. Wright, The Goals of Antitrust: Welfare Trumps Choice, FordhamLAW REVIEW, 81 (2013), available at https://ir.lawnet.fordham.edu/flr/vol81/iss5/9 (last visited Mar. 11, 2018).
- Impact of Government Organizational Reform to Scientific Research Legal System and Response Thereto (1) – For Example, The Finnish Innovation Fund (“SITRA”)
- The Demand of Intellectual Property Management for Taiwanese Enterprises
- Blockchain in Intellectual Property Protection
- Recent Federal Decisions and Emerging Trends in U.S. Defend Trade Secrets Act Litigation
- Impact of Government Organizational Reform to Research Legal System and Response Thereto (2) – Observation of the Swiss Research Innovation System
- The effective and innovative way to use the spectrum: focus on the development of the "interleaved/white space"
- Impact of Government Organizational Reform to Research Legal System and Response Thereto (2) – Observation of the Swiss Research Innovation System
- Executive Yuan Yuan Promoted “Productivity 4.0” to Boost Global Competitiveness