AmCham 
Publications Topics Archive Topics Archive 2007 Vol.37- No.2 Issues
Publications Topics Archive Topics Archive 2007 Vol.37- No.2 Issues | Issues |
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1.Any Used Books to Exchange? -By Anita Chen 2.Compulsory Licensing, Again -By Don Shapiro 3.Fallout from the ASE Tender Case -By Don Shapiro Any Used Books to Exchange? A mechanism has been set up to promote IPR while helping students save money, but it's not getting much use. The illegal photocopying of textbooks - especially for foreign-language and other higher-priced texts - remains a troublesome issue in Taiwan. Although the authorities have sought to monitor the copy shops on and near the campuses, the illicit photocopying is now often done in apartments and other non-commercial locations that are difficult for investigators to find. The Intellectual Property Office (TIPO) has therefore tried another tack in its effort to fight on-campus IPR infringement. Since 2004, it has been promoting a used-textbook exchange program, based on what is common practice at U.S. colleges. Campus bookstores and student organizations at eight Taiwan universities have participated, facilitating the trading of used textbooks through special book fairs during the registration period each semester. In 2005, TIPO further set up an official website, Campus Used Textbooks Exchange, to enable university students throughout Taiwan to buy and sell second-hand textbooks. And recently the Ministry of Education has encouraged universities to make the establishment of used-book sections a requirement when giving out management contracts for campus bookstores. Currently, four campus bookstores have set up regular used-textbook sections. The exchange mechanism gained some public acknowledgement and media attention, yet the results have been minimal. Last year, a total of 1,126 volumes of used textbooks were collected at four university bookstores, and 495 transactions were completed. The website generated somewhat better results, with 2,921 volumes of used textbooks posted for sale and 613 transactions. All together, that comes to 4,047 volumes offered and 1,108 transactions completed. Considering that Taiwan has 1.3 million students at 162 colleges and universities, the question arises as to why the system, with its financial benefits for both buyer and seller, has not been more popular. Perhaps the publicity efforts for the exchange mechanism were insufficient or ineffective. Possibly additional trading was conducted through the universities' Bulletin Board Systems (BBS) or online auction websites. But one is left to wonder whether the core factor might not be that in reality, original textbooks are scarce commodities in Taiwan since most students are using the illegally photocopied versions. Clearly, the problem deserves more attention. Until a solution is found, the young generation is getting the message - at a time when Taiwan is trying to raise its reputation in the world for IPR enforcement - that it is okay to skirt the law. By Anita Chen Compulsory Licensing, Again A proposed amendment to the Patent Law has raised concern among IPR specialists. Among the bills that chaos in the chamber kept from coming to a vote on January 19, the last day of the recent legislative session, was one that would have modified the conditions affecting compulsory licenses to the disadvantage of rights-holders. In this case, delay was a good thing. Until the latest bout of parliamentary rough-housing disrupted proceedings, it appeared that the bill to amend the Patent Law might be pushed through in the final hours of the session. The proposal had been initiated by an individual legislator, and so the public hearings and calls for expert comment that occur with government-sponsored measures did not take place. AmCham and the American Institute in Taiwan learned of the proposal only at the last minute, and had no time to provide any substantive input. In international practice, compulsory licensing is considered as a last resort to be used in rare instances of national security or as a remedy against flagrantly unfair competition. Such compulsory licenses have been granted in two controversial cases in Taiwan in recent years - one for avian-flu vaccine and the other for a compact-disk technology. Considering the sensitivity of the entire issue, intellectual property specialists see the need for broad public discussion before any changes in the law are enacted. The delay should now make that possible. Procedural issues aside, the substance of the bill raised concern on two grounds. One is that it would permit the patent authority to grant a compulsory license to an applicant following an initial court judgment or ruling by the Fair Trade Commission that the patent-holder was engaging in unfair competitive practices. Under the existing Taiwan law (as well as in the United States), such a grant would have to wait until the judgment had been upheld by an appellate body. Without that provision, a thorny question arises of how the patent-holder is to be compensated if the first judgment is overturned on appeal. The other problematic element in the proposed amendment would remove the current stipulation that the compulsory license be used for production for the domestic market only. That existing restriction is in line with international standards under the World Trade Organization, and its removal could reverse the reputation Taiwan has gained in recent years for strengthening its IPR regime. AmCham and other business groups are preparing to make known their detailed opinions on the proposed changes when the next legislative session convenes. - By Don Shapiro Fallout from the ASE Tender Case The slow pace of the Investment Commission in acting on an application by a consortium headed by the Carlyle Group, which seeks to make a tender offer to acquire control of Advanced Semiconductor Engineering Inc. (ASE), the world's biggest chip packaging and testing company, has aroused concern within the international investment community. It has been widely speculated that the government is uncomfortable about the proposed takeover because of indications that the new owners would de-list the company from the Taiwan Stock Exchange and perhaps domicile it in another jurisdiction. The presumed motive for such a move would be to free the company from Taiwan regulations placing a ceiling on a corporation's investment in China (the "40% rule" discussed in the Editorial in the December 2006 issue of Taiwan Business TOPICS). But investment specialists note that nothing in current regulations would warrant the rejection of a foreign-investment application based on suspicions that the company plans to increase its cross-Strait investments. Interfering in the normal investment-approval process to promote policies relating to China, they note, would send a disquieting message to other prospective investors. In line with the rule of law, they add, such policies - if they are to be adopted - should be made explicit and predictable so that companies know how to proceed with their business plans. From another perspective, the Carlyle-ASE case shows why the 40% rule deserves to be carefully re-examined. Says William E. Bryson, co-chair of the AmCham Capital Markets Committee: "The government should reflect on why a company would structure a transaction in this manner and possibly consider moving offshore." - By Don Shapiro |
