TAIWAN
Since January 1996, last amended in January 2020
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Effective protection covering trade secrets
Trade Secrets Act
Trade Secrets Act provides a framework for effective protection of trade secrets. According to Art. 1 of the law, trade secrets are referred to as any method, technology, process, formula, program, design, or other information that may be applied in the course of production, sales, or business operations. And the information shall be protected if and only if it is commercially valuable because of its secrecy and reasonable confidentiality measures have been taken to keep it secret. In addition, according to Art. 15, the protection of trade secrets of foreign nationals is based on the principle of reciprocity. In principle, if a foreign national's home country does not deny protection to the trade secrets of Taiwan nationals, and the foreign national's trade secrets meet the requirements of Taiwan's Trade Secret Act, the foreign national will enjoy the protection of such trade secrets under Taiwan's Trade Secret Act.
Coverage Horizontal
Sources
- https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=J0080028#:~:text=This%20Act%20is%20enacted%20to,be%20governed%20by%20other%20laws.&text=3.,measures%20to%20maintain%20its%20secrecy.
- https://www.btlaw.com.tw/h/NewsInfo?key=2719736319&cont=334324
- https://www.tipo.gov.tw/en/cp-314-183465-fcbd9-2.html
- Show more...
TAIWAN
N/A
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Signature of the WIPO Performances and Phonogram Treaty
Lack of signature of the WIPO Performances and Phonograms Treaty
Taiwan has not signed the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty.
Coverage Horizontal
TAIWAN
N/A
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Signature of the WIPO Copyright Treaty
Lack of signature of the WIPO Copyright Treaty
Taiwan has not signed the World Intellectual Property Organization (WIPO) Copyright Treaty.
Coverage Horizontal
TAIWAN
Since May 1928, as amended in July 2003, last amended in June 2022
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Copyright law with clear exceptions
Copyright Act
The Copyright Act provides a clear regime of copyright exceptions that follows the fair use model, which enables the lawful use of copyrighted work by others without obtaining permission. Art. 65, as amended in July 2003, lists the acts that shall be noted as the basis for the determination of fair use. In determining whether the exploitation of work complies with the reasonable scope or other conditions of fair use, all circumstances shall be taken into account, and in particular, the following facts shall be noted as the basis for determination: (i) the purposes and nature of the exploitation, including whether such exploitation is of a commercial nature or is for nonprofit educational purposes; (ii) the nature of the work; (iii) the amount and substantiality of the portion exploited in relation to the work as a whole; (iv) effect of the exploitation on the work's current and potential market value.
Coverage Horizontal
TAIWAN
Reported in 2021
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Enforcement of copyright online
Lack of adequate enforcement of copyright online
It is reported that concerns over Taiwan's notable level of online copyright piracy through illicit streaming devices or illicit Internet Protocol Television services that unlawfully retransmit telecommunications signals and channels containing copyrighted content via dedicated web portals or third-party applications. In light of this, Taiwan recently geared up by amending the Copyright Act so that competent authorities have legal power to prosecute major copyright infringements without complaint. Furthermore, the Taiwan Intellectual Property Alliance (TIPA) signed a voluntary cooperation agreement with the Taipei Association of Advertising Agencies (TAAA) to combat infringing websites.
Coverage Horizontal
TAIWAN
N/A
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Participation in the Patent Cooperation Treaty
Lack of participation in the Patent Cooperation Treaty (PCT)
Taiwan is not a party to the Patent Cooperation Treaty (PCT). However, any applicant from a WTO member that files a patent application in Taiwan based on a PCT application may claim a right of priority if the PCT application is a legal application.
Coverage Horizontal
TAIWAN
Since May 1944, entry into force in January 1949, last amended in May 2022
Pillar Intellectual Property Rights (IPRs) |
Sub-pillar Practical or legal restrictions related to the application process for patents
Patent Act
Under Art. 25 of the Patent Act (enacted in 1994), the application form must be filled out in traditional Chinese, including the description, claim(s) and drawing(s). Initially, the description, claim(s) and drawing(s) may be submitted in Arabic, English, French, German, Japanese, Korean, Portuguese, Russian and Spanish. A Chinese translation for the said documents must be submitted within a specified time period, or the patent application shall be dismissed. In addition, according to Art. 11 of the Act, an applicant who has no domicile or business establishment in the territory of China shall designate an agent to file patent applications and handle patent-related matters on his/her behalf. Eligible agents shall be limited to patent attorneys, unless otherwise provided for by laws and regulations. Furthermore, non-residents cannot make a payment of any fees directly to Taiwan Intellectual Property Office by any means, whether it be payment by bank account transfer, credit card, or check. The payment has to be made by an appointed representative either residing or domiciled in Taiwan such as a patent attorney.
Coverage Horizontal
TAIWAN
Since July 1954, last amended in November 1997
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Screening of investment and acquisitions
Statute for Investment by Overseas Chinese
Under the Statute for Investment by Overseas Chineses, all investment by overseas Chinese companies must be approved by the investment Commission (IC) of the Ministry of Economic Affairs (Art. 8). Investment under the Statute refers to (a) holding shares issued by a Taiwanese company or contributing to its capital asset, (b) establishing a branch office in Taiwan, or (c) providing loan to the invested enterprise in cases of (a) or (b) for more than one year (Art. 4).
Investment in industries (a) that may threaten national security, public order, good customs and practices, or national health or (b) that are prohibited by the negative list is forbidden under Art. 7 of the Statute. The prohibited industries in the negative list include radio broadcasting and radio television industry.
As opposed to investments in prohibited industries, foreign investment in industries restricted by the law must be approved by the IC under Art. 8 of the Statute. The restricted industries include satellite television broadcasting.
Investment in industries (a) that may threaten national security, public order, good customs and practices, or national health or (b) that are prohibited by the negative list is forbidden under Art. 7 of the Statute. The prohibited industries in the negative list include radio broadcasting and radio television industry.
As opposed to investments in prohibited industries, foreign investment in industries restricted by the law must be approved by the IC under Art. 8 of the Statute. The restricted industries include satellite television broadcasting.
Coverage Chinese companies
TAIWAN
Since July 1992, last amended in June 2022
Since December 2020
Since December 2020
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Screening of investment and acquisitions
Act Governing Relations between the People of the Taiwan Area and the Mainland Area
Measures Governing Investment Permit to the People of Mainland Area
Measures Governing Investment Permit to the People of Mainland Area
Under Art. 73 of the Act Governing Relations between the People of the Taiwan Area and the Mainland Area (enacted in 1992), investment activities in the Taiwan Area by any individual, juristic person, organization, or other institution of Mainland China, or any company it invests in any third area is prohibited unless permitted by the competent authorities.
Under Art. 3 of the Measures Governing Investment Permit to the People of Mainland Area (Measures), the invested companies in a third area refer to the individuals, juristic persons, organizations, and other institutions from Mainland China that either (a) directly or indirectly holds the shares issued by a company in a third area or the total contributing amount exceeding 30% or (b) have the controlling power over the companies in a third area. Investment from Mainland China in the aforementioned manner must get approval from the Ministry of Economic Affairs under Article 8 of the Measures. Furthermore, investment that creates (a) economic exclusive occupancy, oligopoly or monopoly, (b) political, social, or cultural sensitivity or impact upon national security, or (c) negative influence upon the national economic development or financial stability is prohibited under Art. 8 of the Measures.
Under Art. 3 of the Measures Governing Investment Permit to the People of Mainland Area (Measures), the invested companies in a third area refer to the individuals, juristic persons, organizations, and other institutions from Mainland China that either (a) directly or indirectly holds the shares issued by a company in a third area or the total contributing amount exceeding 30% or (b) have the controlling power over the companies in a third area. Investment from Mainland China in the aforementioned manner must get approval from the Ministry of Economic Affairs under Article 8 of the Measures. Furthermore, investment that creates (a) economic exclusive occupancy, oligopoly or monopoly, (b) political, social, or cultural sensitivity or impact upon national security, or (c) negative influence upon the national economic development or financial stability is prohibited under Art. 8 of the Measures.
Coverage Chinese companies
Sources
- https://www.mac.gov.tw/en/News_Content.aspx?n=4F2E0C155DF44564&sms=2C46F5E37DC2E1D2&s=1403D3EA1BC2B0B9#Chapter%20I%20General%20Provisions
- https://www.bycpa.com/html/news/20106/1476.html
- https://uk.practicallaw.thomsonreuters.com/2-500-5464?transitionType=Default&contextData=(sc.Default)&firstPage=true
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TAIWAN
Since July 1954, last amended in November 1997
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Screening of investment and acquisitions
Statute for Investment by Foreign Nationals
Under the Statute for Investment by Foreign Nationals (enacted in 1954), all foreign investment must be approved by the investment Commission (IC) of the Ministry of Economic Affairs (Article 8). Investment under the Statute refers to (a) holding shares issued by a Taiwanese company or contributing to its capital asset, (b) establishing a branch office in Taiwan, or (c) providing loan to the invested enterprise in cases of (a) or (b) for more than one year (Art. 4).
Foreign investment in industries that may threaten national security, public order, good customs and practices, or national health as well as investment in industries that are prohibited by the negative list is forbidden under Art. 7 of the Statute. The prohibited industries in the negative list include radio broadcasting and radio television industry.
As opposed to investment in prohibited industries, foreign investment in industries restricted by law must be approved by the IC under Art. 8 of the Statute. The restricted industries include satellite television broadcasting. It is reported that "regulatory and legislative scrutiny of select investments on grounds unrelated to national security contributes to ongoing concerns about the predictability of Taiwan's investment approval procedures."
Foreign investment in industries that may threaten national security, public order, good customs and practices, or national health as well as investment in industries that are prohibited by the negative list is forbidden under Art. 7 of the Statute. The prohibited industries in the negative list include radio broadcasting and radio television industry.
As opposed to investment in prohibited industries, foreign investment in industries restricted by law must be approved by the IC under Art. 8 of the Statute. The restricted industries include satellite television broadcasting. It is reported that "regulatory and legislative scrutiny of select investments on grounds unrelated to national security contributes to ongoing concerns about the predictability of Taiwan's investment approval procedures."
Coverage Horizontal
Sources
- https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=J0040002
- https://www.moeaic.gov.tw/businessPub.view?lang=en&op_id_one=1
- https://uk.practicallaw.thomsonreuters.com/2-500-5464?transitionType=Default&contextData=(sc.Default)&firstPage=true
- https://ustr.gov/sites/default/files/files/reports/2021/2021NTE.pdf
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TAIWAN
Since February 1999, last amended in May 2022
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Maximum foreign equity share
Satellite Broadcasting Act
Art. 4 of the Satellite Broadcasting Act (enacted in 1999) states that foreigners may not own more than 50% of the total shares issued by providers of satellite broadcasting services.
Coverage Satellite broadcasting
TAIWAN
Since July 1954, last amended in November 1997
Since July 1954, last amended in November 1997
Since February 2018
Since July 1954, last amended in November 1997
Since February 2018
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Maximum foreign equity share
Statute For Investment By Overseas Chinese
Statute For Investment By Foreign Nationals
Negative List for Investment by Overseas Chinese and Foreign Nationals: List for Prohibited & Restricted Investment Industries
Statute For Investment By Foreign Nationals
Negative List for Investment by Overseas Chinese and Foreign Nationals: List for Prohibited & Restricted Investment Industries
According to Section 7 of the Statute For Investment By Overseas Chinese and Statute For Investment By Foreign Nationals, it is prohibited to invest in industries that may adversely affect national security, public order, good customs and practices or national health, as well as those prohibited by law. According to the Negative List of Overseas Chinese and Foreign National Investment, postal and courier activities are prohibited from foreign investment.
Coverage Postal and courier
activities
activities
Sources
- https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=J0040001#:~:text=An%20investor%20shall%20be%20entitled,has%20assigned%20his%2Fher%20investment.
- https://law.moj.gov.tw/ENG/LawClass/LawAll.aspx?pcode=J0040002
- https://investmentpolicy.unctad.org/investment-laws/laws/323/taiwan-province-of-china-negative-list-for-investment-by-overseas-chinese-and-foreign-nationals
- Show more...
TAIWAN
N/A
Pillar Public procurement of ICT goods and online services |
Sub-pillar Signatory of the WTO Agreement on Government Procurement (GPA)
Lack of coverage of CPC 754 in the WTO Government Procurement Agreement (GPA)
Although Taiwan is a signatory to the WTO Government Procurement Agreement (GPA), its coverage schedules do not include "telecommunications related services" (CPC 754) which is an important service sectors for digital trade.
Coverage Telecommunications related services
TAIWAN
Since June 2019
Since October 1958, last amended in December 2013
Since October 1958, last amended in December 2013
Pillar Foreign Direct Investment (FDI) in sectors relevant to digital trade |
Sub-pillar Maximum foreign equity share
Telecommunications Management Act
Telecommunications Act
Telecommunications Act
According to Art. 36 of the Telecommunications Management Act (2020), a foreigner may not own more than 49% of the shares of a facility-based telecommunication company. Furthermore, a foreigner may not own more than 60% of such shares in the sum of direct and indirect shareholding (e.g., by setting up a Taiwanese company). This only applies to Type I telecom enterprises. According to Art. 11 of the Telecommunications Act, telecommunications enterprises are classified into Type I telecommunications enterprises, which install telecommunications line facilities and equipment in order to provide telecommunications services, and Type II telecommunications enterprises, which include all other telecom providers.
Coverage Telecommunications sector
TAIWAN
Since May 1998, last amended in May 2019
Since May 1999
Since May 1999
Pillar Public procurement of ICT goods and online services |
Sub-pillar Other limitations on foreign participation in public procurement
Government Procurement Act
Regulations for the Implementation of Price Preference by Local Suppliers
Regulations for the Implementation of Price Preference by Local Suppliers
Under Art. 43(2) of the Government Procurement Act, a procuring entity may award a contract to a domestic supplier by preference over a foreign supplier if they both submit the lowest tender. Furthermore, under Art. 44 of the Act, a procuring entity may award a contract to a domestic supplier by preference over a foreign supplier which submits the lowest tender if the domestic supplier supplies goods with at least 50% of local content.
In such cases, under Art. 5 of Regulations for the Implementation of Price Preference by Local Suppliers (Regulations on Price Preference), the procuring entity can award the contract to the domestic supplier as long as the bid price from the domestic supplier does not exceed the bid price of the foreign supplier that is multiplied by a preferential rate set by relevant government procurement publications (Art. 4-5 of the Regulations on Price Preference). This essentially functions as a price preference in favor of domestic competitors.This means that such a contract may be awarded to the domestic supplier if its bid price exceeds the lowest amount submitted by the foreign supplier and the price is within the preferential amount (Art. 7 of Regulations on Price Preference). This discriminatory scheme does not apply to foreign suppliers in procurement activities that shall be conducted in accordance with a relevant treaty or agreement (Art. 105 of the Act).
In such cases, under Art. 5 of Regulations for the Implementation of Price Preference by Local Suppliers (Regulations on Price Preference), the procuring entity can award the contract to the domestic supplier as long as the bid price from the domestic supplier does not exceed the bid price of the foreign supplier that is multiplied by a preferential rate set by relevant government procurement publications (Art. 4-5 of the Regulations on Price Preference). This essentially functions as a price preference in favor of domestic competitors.This means that such a contract may be awarded to the domestic supplier if its bid price exceeds the lowest amount submitted by the foreign supplier and the price is within the preferential amount (Art. 7 of Regulations on Price Preference). This discriminatory scheme does not apply to foreign suppliers in procurement activities that shall be conducted in accordance with a relevant treaty or agreement (Art. 105 of the Act).
Coverage Horizontal