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Laws and Regulations

THE INDIGENOUS TRADITIONAL INTELLECTUAL CREATIONS PROTECTION ACT (AS PROMULGATED: DECEMBER 26, 2007)
更新時間:2015/01/07 17:27:57
標  題: THE INDIGENOUS TRADITIONAL INTELLECTUAL CREATIONS PROTECTION ACT (AS PROMULGATED: DECEMBER 26, 2007)
內  容:
Council of Indigenous Peoples, December 26, 2007

Article 1
Legislative Purposes, Scope, and Applicability
 
This Act is hereby promulgated in accordance with Article (13) of The Indigenous Peoples' Basic Law for the expressed purpose of preserving traditional knowledge and cultural properties of Indigenous Peoples, safeguarding the cultural rights of Indigenous Peoples, and protecting Indigenous Peoples’ (ITICs).rights over their traditional intellectual creations, so as to promote the sustainable cultural development of Indigenous knowledge systems and practices (IKSPs) as well as Indigenous traditional intellectual creations
Article 2
The Competent Authority Responsible for Matters Relating to Indigenous Traditional Intellectual Creations (ITICs)
 
The Competent Authority charged with the responsibility for matters within the scope of this Act refers to the Council of Indigenous Peoples (hereinafter referred to as CIP), a ministry-level body directly under the Executive Yuan.
Article 3
Definition of Indigenous Traditional Intellectual Creations (ITICs)
 
For the purposes of this Act, the term “Indigenous traditional intellectual creations” (hereinafter referred to as the ITICs or an ITIC) means Indigenous Peoples’ cultural manifestations, such as, inter alia, Indigenous knowledge systems and practices (IKSPs), Indigenous traditional
ecological knowledge (ITEK), Indigenous Peoples' cultural and scientific knowledge, bio-cultural knowledge, and ethno-biological knowledge, as well as Indigenous Peoples’ cultural heritage in all forms of expressions, such as, but not limited to, literary creations (e.g. poetry, proverbs, stories, folklores, and so on), religious and spiritual properties (e.g. sacred cultural works, traditional religious ceremonies, practices, rituals, and so on), performing arts (e.g. music, dance, songs, and so on), visual arts (e.g. sculptures, paintings, photographs, weaving, patterns, clothing, graphics, folk art, traditional handicrafts, artifacts, designs, and so on), and any other cultural patrimony, cultural works, embodiments, inventions, practices, and so on, as a result of intellectual efforts and intellectual activities of Indigenous Peoples.
Article 4
Recognition, Certification, and Application for Registration Regarding Indigenous Traditional Intellectual Creations (ITICs)
 
In order to acquire official recognition, certification, and hence legal rights over any ITICs in question, the concerned Indigenous ethnic groups, tribes, and/or Indigenous Peoples’ Organizations (IPOs) may motu proprio register with the Competent Authority concerned by submitting application for registration to the concerned Competent Authority.
The criteria for official recognition and certification of any ITICs in question as well as application requirements for registration thereof referred to in the preceding paragraph shall be duly prescribed by the Competent Authority concerned.
Article 5
Recruitment of Personnel Responsible for Recognition, Certification, and Application for Registration Regarding Indigenous Traditional Intellectual Creations (ITICs)
 
The concerned Competent Authority shall recruit and/or appoint designated specialist officers (DSOs) and/or authorized representatives (ARs) in charge of the said official recognition / certification of ITICs and application for registration pertaining to the said ITICs.
With respect to the recruitment and/or appointment for the said positions of designated specialist officers (DSOs) and/or authorized representatives (ARs), the concerned Competent Authority shall ensure that all Indigenous employment applicants, that is, scholars and professionals with legal Indigenous status, be given priority considerations, in such a manner that the Indigenous Staffing Rate (ISR) thereof reaches a minimum rate of fifty per cent (50%) of the entire staff filling up the said positions.
Article 6
Documents Required for Registration of Indigenous Traditional Intellectual Creations (ITICs) and Selection of Authorized Representatives (ARs)
 
In order to acquire official recognition, certification, and hence legal rights over any ITICs in question, the applicant concerned is required to submit application for registration to the concerned Competent Authority, providing all documents listed below, namely:
1. duly accomplished application forms;
2. a list of specifications regarding the ITICs in question; and
3. inclusion of accompanying explanatory notes and/or graphics, images, and/or related demos and documents such as, but not limited to, a sample or a copy of intellectual, literary, musical, and/or artistic creations, whether audio, visual, or audio-visual.
With regards to the eligibility for application for the said registration of the ITIC in question, the applicant concerned referred to in the preceding paragraph shall be Indigenous ethnic groups, tribes, Indigenous Peoples’ Organizations (IPOs), or authorized representatives (ARs) on their own behalf. As such, provisions concerning the selection and appointment of afore-mentioned authorized representatives (ARs) shall be duly prescribed by the Competent Authority concerned.
Article 7
Obtaining Exclusive Rights to Use (RTU) Over Registered Indigenous Traditional Intellectual Creations (ITICs)
 
Once the certification and registration processes are successfully completed, upon approval, the concerned applicants shall be awarded the exclusive rights of use (RTU) over the registered ITICs; as such, the following guidelines for the said registration procedures, inter alia, are hereby adopted to safeguard the rights of Indigenous Peoples over their registered ITICs, as the case may be:
1. Where the applicants are proved to be the sole owner of the ITICs being registered, registration / certification shall be approved. As such, the applicants shall obtain the exclusive rights of use (RTU) over the registered ITICs in question, starting from the date of registration;
2. Where the ITICs being registered are proved to simultaneously belong to both the applicant and other specific Indigenous ethnic groups, tribes, or Indigenous Peoples’ Organizations (IPOs), the applicant and said specific Indigenous ethnic groups, tribes, or Indigenous Peoples’ Organizations (IPOs) shall be awarded joint ownership of the registered ITICs in question, as well as the exclusive rights of use (RTU) over the said registered ITICs, starting from the date of registration; or
3. Where the ITICs being registered cannot be proved to belong to any specific Indigenous ethnic groups, tribes, or Indigenous Peoples’ Organizations (IPOs), the ITICs in question shall be registered under the name of the Indigenous Peoples as a whole. As such, the Indigenous Peoples as a whole shall be awarded the exclusive rights of use (RTU) over the said registered ITICs, starting from the date of registration.
Article 8
Subsequent Modification Ensuing Initial Registration Regarding Indigenous Traditional Intellectual Creations (ITICs)
 
In cases where any subsequent change or modification is to be made to the name(s) of the rights holders of any given registered ITICs, the rights holders concerned are required to submit an official application for modification to the Competent Authority concerned.
Article 9
Official Register and Notification Regarding Registered Indigenous Traditional Intellectual Creations (ITICs) and Relevant Issuance of Certificates and Certification Marks
 
This Act requires The concerned Competent Authority to establish for publication in the Official Register a list of registered ITICs eligible for official Certificates and Certification Marks, as well as perform the issuance of relevant Notifications in this regard.
Where any given ITICs are certified by the concerned Competent Authority in accordance with Article (7) under this Act and approved for registration, the information thereon shall be duly published in the Government Gazette, while being made public on the Internet.
The concerned Competent Authority shall issue an ITIC Exclusive User Certificate and Certification Marks to be awarded to respective successful applicants.
The enactments and rules of law governing the application for registration of ITICs, issuance and reissuance of Certificates, grant of Certification Marks, annulment, cancellation, and revocation in this regard, shall be duly prescribed by the concerned Central Competent Authority.
Article 10
Moral Rights over Registered Indigenous Traditional Intellectual Creations (ITICs) in Conjunction with the Exclusive Right to Use (RTU) over the Same ITICs
 
The exclusive right to use registered ITICs shall refer to the property rights and moral rights over registered ITICs.
The rights holders of an exclusive right to use (RTU) over the registered ITICs shall equally enjoy the moral rights (droit moral) over the same, including the following:
1. the droit moral to have a work published in all forms of media;
2. the droit moral to make known to the public the name of the exclusive user; and
3. the droit moral to preserve the integrity of the work by prohibiting others from any alteration, distortion, mutilation or other modification of or other derogatory action in relation to, the said registered ITICs, which would be prejudicial to the honor or reputation of the said rights holders.
Unless otherwise provided for by law or specified under a valid contractual agreement, on behalf of specific Indigenous ethnic groups, tribes, or Indigenous Peoples’ Organizations (IPOs), the rights holders of any given registered ITICs shall exercise their exclusive right to use the said registered ITICs in such a manner that they exercise their exclusive right-to-use (RTU) and derive economic benefits exclusively from the use of the said registered ITICs in accordance with the property rights in conjunction with the moral rights within such scope as said rights are defined in the preceding paragraph.
On behalf of specific Indigenous ethnic groups, tribes, or Indigenous Peoples’ Organizations (IPOs), Indigenous Persons with legal Indigenous status are entitled to use and derive economic benefits from the registered ITICs belonging to the said specific Indigenous ethnic groups, tribes, or Indigenous Peoples’ Organizations (IPOs), regardless of the limitations and/or restrictions prescribed in the provisions under Article (14) in this Act.
Article 11
Specified Circumstances Pertaining to Limitations on Exclusive Right-to-use (RTU) over Registered Indigenous Traditional Intellectual Creations (ITICs)
 
The exclusive right to use any given registered ITICs shall not be assigned, mortgaged, and/or exercised as a result of compulsory execution.
Article 12
Transfer of the Exclusive Right-to-use (RTU) over Registered Indigenous Traditional Intellectual Creations (ITICs)
 
The exclusive right-to-use (RTU) over registered ITICs shall not be given up unless with the express formal permission of the Competent Authority concerned; once given up, the said exclusive right-to-use (RTU) over registered ITICs shall be automatically transferred to the Indigenous Peoples as a whole.
Article 13
Licensing Exclusive or Non-Exclusive Right-To-Use (RTU) over Registered Indigenous Traditional Intellectual Creations (ITICs) under A Valid Contractual Agreement and the Effect Thereof
 
The rights holders of any given registered ITICs have the right to license the right-to-use (RTU) so that the recipient of RTU may use the said registered ITICs in question; as such, the territory, time, content, method of use or other matters pertaining to the said licensing of right-to-use (RTU) shall be specified under a valid contractual agreement entered into by the interested parties; portions that are not clearly defined and/or specified under the said valid contractual agreement shall not be considered or included as part of a license.
With regards to licensing of exclusive right-to-use (RTU) over any given registered ITICs, all licenses granted by rights holders shall be signed by the concerned parties and submitted to the Competent Authority concerned, along with a valid contractual agreement entered into by the concerned parties and supporting documents thereof as proof, as integral part of application for registration. No licenses granted by rights holders shall be given effect unless registration is successfully completed.
No initial licensing shall be affected by subsequent licensing of exclusive right-to-use (RTU) over any given registered ITICs granted by rights holders of the ITICs in question.
Licensees under a non-exclusive agreement regarding any given registered ITICs shall not sublicense the rights licensed thereto to any third party without first obtaining the free and prior informed consent (FPIC) of the concerned rights holders of the ITICs in question.
Licensees under an exclusive agreement regarding any given registered ITICs shall exercise their rights as rights holders within such scope as authorized by the said rights holders and duly specified in the said exclusive agreement. As such, thereafter, the concerned rights holders of the ITICs in question as well as the Indigenous Peoples themselves shall only exercise their rights over the ITICs in question in so far that their rights are outside the provisions specified in the said licensed exclusive agreement.
Article 14
Pecuniary Benefits, Profits, and Advantages Derived from Commercial Use of Indigenous Traditional Intellectual Creations (ITICs) and Relevant Revenue Sharing
 
In the event that, in accordance with the provisions contained in subparagraph (1) or subparagraph (2) under Article (7) herein, specific Indigenous ethnic groups, tribes, or Indigenous Peoples’ Organizations (IPOs) are duly awarded joint ownership of any given registered ITICs, hence the exclusive rights of use (RTU) over the same, the economic benefits derived from ITICs use thereof shall be utilized to set up mutual funds for the benefit of the concerned Indigenous ethnic groups, tribes, or Indigenous Peoples’ Organizations (IPOs); the enactments and rules of law governing the revenue resources, expenses, custodial accounts, and utilization methods of the said mutual funds shall be duly prescribed by the concerned Central Competent Authority.
In the event that the exclusive rights of use (RTU) over the said registered ITICs are duly obtained by the Indigenous Peoples as a whole, the economic benefits derived from ITICs use thereof shall be duly deposited into The Indigenous Peoples All-Purpose Development Fund and be utilized for the sole purpose of promoting the sustainable cultural development of all ITICs belonging to Indigenous ethnic groups, tribes, and/or Indigenous Peoples’ Organizations (IPOs).
Article 15
Perpetual Protection of the Exclusive Right-To-Use (RTU) over Registered Indigenous Traditional Intellectual Creations (ITICs)
 
The exclusive right-to-use (RTU) over registered ITICs shall be granted perpetual protection.
In the event that the rights holders of exclusive right-to-use (RTU) over registered ITICs cease to exist, the protection of the said exclusive right-to-use (RTU) thereof shall be deemed to survive the deceased rights holders and live on perpetually; upon the death of initial rights holders, the exclusive right-to-use (RTU) over registered ITICs shall belong to the Indigenous Peoples as a whole, starting from the date of the said death.
Article 16
Specified Circumstances under Which Existing Published Indigenous Traditional Intellectual Creations (ITICs) Are Allowed To Be Used
 
Existing published ITICs shall be allowed to be used provided that:
1. the said ITICs are published on the basis of not-for-profit use by individuals or families;
2. the said published ITICs are serving as material for reporting, criticism, education or research purposes; and
3. the said ITICs are published on the basis of fair use and/or other justified purposes.
Any use of the said published ITICs as referred to in the preceding paragraph shall acknowledge and give due credit to the source. However, such limitation shall not apply if there is little probability that the purpose and method of said ITICs use would give rise to infringement of rights holders’ exclusive rights over the same or any violations on Indigenous Peoples' customary practices.
Article 17
Prevention of and Remedy for Infringement of the Exclusive Right-To-Use (RTU) over Registered Indigenous Traditional Intellectual Creations (ITICs)
 
Rights holders of exclusive right-to-use (RTU) over any given registered ITICs are entitled to demand removal of any infringement of their rights.
In the event that any person acts in a way likely to infringe on the exclusive right-to-use (RTU) over registered ITICs, the rights holders of exclusive right-to-use (RTU) over the same may motu proprio demand action be taken to prevent such possible infringement from actually happening.
Article 18
Liability for Damage and to Compensation and Claim Filing in Case of Infringement of the Exclusive Right-To-Use (RTU) over Registered Indigenous Traditional Intellectual Creations (ITICs)
 
With respect to the liability for damages arising out of or in connection with gross negligence or willful misconduct, any person infringing upon any right-holder’s exclusive right-to-use (RTU) over any given registered ITICs shall be liable to compensation for damage.
Where there is more than one infringer, all infringers shall be held jointly and severally liable and claimed as such.
With respect to the right to file a claim as referred to in the preceding paragraph, the limitation period starts from when claimant has knowledge and is able to file a claim, complaint, or a civil suit claiming damages for infringement. Under no circumstances can the limitation period exceed ten (10) years from the date of discovery of injury suffered; where no a claim, complaint, or a civil suit is filed within period of limitation on filing claim, it shall be deemed that the affected rights holder waives or agrees to forego a claim, complaint, or a civil suit claiming damages for infringement. The same shall apply if the right to claim is not exercised within ten (10) years from the date of infringement.
Article 19
Methods for Measuring Infringement Damages and Calculating Compensation in Case of Infringement of the Exclusive Right-To-Use (RTU) over Registered Indigenous Traditional Intellectual Creations (ITICs)
 
In the event of filing an infringement claim, the affected rights holder may follow the following guidelines for measuring infringement damages and calculating compensation:
1. The affected rights holder may determine the amount of damages as prescribed by Article (216) of the Civil Code. Provided that the affected rights holder is unable to measure damages, the compensation shall be limited to the injury actually suffered and the interests which have been lost. Interests which could have been normally expected are deemed to be the interests which have been lost, according to the ordinary course of things, the decided projects, equipment, or other particular circumstances; and
2. The affected rights holder may base the damages on the difference between the amount of expected benefit from the exercise of such rights under normal circumstances and the amount of benefit from the exercise of the same rights after the infringement; or base the amount on the benefit obtained by the infringer on account of the infringing activity, provided that the infringer is unable to prove the overall cost or necessary expenses.
In the event that the affected rights holder cannot prove the amount of damages, he or she may ask the court to determine compensation based on the seriousness of the infringement. Compensation may range from Fifty Thousand New Taiwan Dollars (NT$50,000) to Three Million New Taiwan Dollars (NT$3,000,000). In a very serious case, the amount of compensation may be raised to Six Million New Taiwan Dollars (NT$6,000,000).
Article 20
How to Address Infringement of the Exclusive Right-To-Use (RTU) over Registered Indigenous Traditional Intellectual Creations (ITICs)
 
In the event of infringement of exclusive right-to-use (RTU) over any given registered ITICs, the affected rights holders may motu proprio request for orders to dispose of or destroy infringing goods, and/or take necessary action to protect and enforce their rights, while requiring the infringing party to publish all or part of the judgment in a newspaper or magazine with the fees thereof being borne by the party accused of infringement.
Article 21
International Treaties and/or Agreements Will Govern and Take Precedence
 
In cases where there exist intellectual creation protection treaties and/or agreements between the Government of the Republic of China and foreign governments, such international treaties and/or agreements will govern and take precedence over this Act.
Article 22
Recognition of Legal Rights Obtained under Other Rules of Law over the Same Registered Indigenous Traditional Intellectual Creations (ITICs)
 
In respect of rights holders of exclusive right-to-use (RTU) over any given registered ITICs, in no way rights obtained under this Act shall affect legal rights obtained in accordance with other enactments or rules of law by the said rights holders or by a third party.
Article 23
This Act shall come into force as from the date of its promulgation.