It has been a productive eighteen months for those people interested in bringing the ROC's intellectual property rights (IPR) laws into line with the standards of GATT, the Berne Convention, and the U.S. Trade Representative, who decides whether Taiwan deserves trade sanctions for violating American copyrights, patents, and trademarks. Taiwan now has new or revised laws covering all of these areas.
Good laws are just the first step. Effective enforcement remains a particularly complex problem, not only for IPR, but throughout the legal system. Most IPR cases require specialized expertise, and legal authorities can easily find themselves out of their depth. The intricacies of biotechnology and integrated circuitry are not covered in police academies and law schools. Legal personnel admit they need more training. Judges, prosecutors, and customs officials have been conducting productive exchange and study programs with their U.S. counterparts for years, but IPR occupies only a small portion of the agenda. More needs to be done. Similar training is necessary for the island's police force and the investigative officers who work in the ministries of Justice, Interior, and Economic Affairs. If they can work together, overlapping jurisdictions on IPR issues might also be resolved.
But training needs to be coupled with experience. The lack of trial experience thus far with IPR cases adds to the difficulties. A large body of legal precedents in IPR cases has yet to be established, partially because these cases are usually filed and tried before judges in criminal courts, not civil courts (Taiwan does not have a jury system). IPR violations are criminal offenses, and convicted individuals face fines and/or imprisonment. This approach was taken in part because it is so difficult to gather enough information to bring a civil case to court. One reason is that businesspeople are adept at changing a company's name and structure (which is possible because of weak regulatory agencies), or dissolving the company and simply disappearing, when they think they might be under investigation. Criminal procedures are more effective in nailing down evidence and snagging IPR lawbreakers.
The approach has also produced some unfortunate results. It encourages those accused of IPR violations to settle out of court, even if they feel they have a very good case against the charges brought against them under, say, the Patent Law. The settlement route is considered better than paying for a long, expensive court case and risking jail. There is also evidence of charges being filed by local copyright or patent holders as a way to make quick money through out-of-court settlements. This is one habit that needs correcting. The threat of an IPR case should not be a tool of intimidation against legitimate businesses. This is not a way to build respect for the law. The handling of IPR cases—and public understanding of their complexity and impact on business—will improve when legal authorities can see more of them through the complete court process.
The development of positive legal attitudes toward IPR has already received a boost from the government. Officials are making it clear that the long-term interests of Taiwan as a producer of high-tech products and as an international trader require enthusiastic support for high IPR standards. But the consensus for IPR enforcement in government and among high-tech businesspeople has yet to be embraced by the majority of the public. Perhaps the biggest obstacle in IPR enforcement remains the public's general indifference toward obeying any laws that seem inconvenient.
All law enforcement, not just for IPR, needs to be strengthened. Public respect for the legal system is low because some highly visible areas of law are so rarely enforced and therefore blatantly ignored on a daily basis by so many of the island's residents. Every day there is widespread flaunting of traffic and parking rules, blatantly violations of zoning and construction codes, and wholesale avoidance of sales taxes by street vendors, night market stands, and the many retailers and service businesses that commonly offer a lower price if no sales receipt is requested.
The pressure is on everyone to ignore these laws because they are inadequately enforced. No enforcement is worse than no law at all. It creates the impression that legal institutions are weak and capricious. This attitude is not a new one, but it has escalated in severity in the past decade with the boom in population, construction, and the number of cars on the streets. The result is that people who do obey the letter of these laws are thought to be impractical or hopelessly idealistic. The attitude has an impact on views of the whole legal environment.
But some laws are invariably obeyed. For example, one law requires all drivers to wear chest-crossing seat belts when they drive on the freeways. Even the island's worst drivers comply because of the surety and severity of punishment. Roadside cameras bolster highway patrol cars by recording license numbers and drivers' faces; all violators receive written notices of their violation, with no exceptions for one's status; and the fine is high enough to be a deterrent.
This example is instructive for all law enforcement, IPR included: Set up a police and monitoring system that severely limits the number of violators who escape detection and makes no exceptions based on personal status or connections. Establish a reputation for quick and efficient legal processing of violators. Make punishments severe enough to ensure compliance, but also avoid draconian severity. In short, fine-tuned laws and enforcement can produce more positive public habits. Once the public attitude toward law shifts, the big stick approach to IPR enforcement may be minimized. But it will take time. New habits have to be built. This will happen at a faster rate when people are motivated by better law enforcement.