The Council of Indigenous Peoples promulgated the Guidelines for Implementing the Protection of the Traditional Intellectual Creations of Indigenous Peoples (hereinafter, the "Guidelines") via the Yuan-Min-Jing-1030063178 Directive of January 8, 2015. The Guidelines came into effect on March 1, 2015. The Guidelines are formulated pursuant to the authorization under Article 4, Paragraph 2 and Article 6, Paragraph 2 and Article 9 of the Protecting Act for the Traditional Intellectual Creations of Indigenous Peoples (hereinafter, the "Statute"), which came into effect in 2008, serve as the determination criteria for the traditional intellectual creations of indigenous peoples and stipulate the application and registration of such creations. After the effective date of the Guidelines, indigenous peoples or tribes may, pursuant to the Statute and the Guidelines, apply for the recognition and registration of their traditional intellectual creations, which cannot be used by others without an exclusive right or a license. The legislative model of the Guidelines is slightly different from the Copyright Law with the Guidelines highlighted below:
(1) Article 2 specifically stipulates the types and contents of the traditional intellectual creations of indigenous peoples.
The types and contents of the traditional intellectual creations of indigenous peoples include: (1) religious rituals; (2) music; (3) dances; (4) songs; (5) sculptures; (6) weaves; (7) patterns; (8) costumes; (9) folk arts; and (10) other cultural achievements. In addition, an applicant may apply to register one of them or a combination of different types or only a part of the expressions of the combinational cultural achievements. The legislation is made by way of examples in contract to the enumerative regulation of copyright, which stresses that specific expressions are the subject of protection. The Guidelines regulate in abstract and conceptual manners. All creations derived from concepts of traditional indigenous culture may be protected under the Guidelines.
(2) Articles 3 through 7 provide for an intellectual creation applicant as the representative.
The applicants for intellectual creations are limited to indigenous peoples or tribes and a representative should be appointed. The representative should have indigenous identity, be a member of the indigenous people or tribe for whom the intellectual creation application was filed, and be appointed by such indigenous people or tribe according to their organizational type and to their custom. In addition, a representative appointed by an indigenous people or tribe should carry out his/her duties faithfully and exercise caution as a good administrator. Whether the representative is remunerated should be determined by the indigenous people or tribe according their organizational type and custom.
This means that the exclusive right to intellectual creations vests with the entire people or tribe, only that the right is applied and exercised by their representative. This is different from copyright, which belongs to the individual copyright holder.
(3) Articles 8 through 19 regulate application matters.
An intellectual creation specification should specify: (1) the name and type of the intellectual creation; (2) the applicant and the indigenous people or tribe seeking to obtain an exclusive right to the intellectual creation; and (3) the contents of the intellectual creation, which include (a) the features and scope that meet recognition criteria and rules; (b) the historical significance, existing manners of exploitation and future development of the intellectual creation; (c) the social and/or cultural connections between the intellectual creation and the indigenous people or tribe of whom the intellectual creation applicant is a member, including identity relations, mores and taboos; and (d) contents which are closely linked to the social network of the indigenous people or tribe for whom the intellectual creation applicant is a member and which is not appropriate for public disclosure.
(4) Articles 20 through 24 regulate examination matters.
If an intellectual creation is recognized with attribution relations covering more than one indigenous people or tribe, it should be deemed that allindigenous peoples or tribes contributed to the intellectual creation will jointly obtain the it. If a high degree of association between a cultural achievement expression for which recognition application is filed and the traits or characteristics of any individual indigenous people or tribe cannot be confirmed, it should be deemed that the expression belongs to all indigenous peoples and tribes in Taiwan.
The Guidelines follows the doctrine of formal examination, and a formal examination is required before a traditional intellectual creation can be recognized and its attribution relations determined. This is different from the doctrine of creation for copyright, which is obtained upon creation.
(5) Articles 25 through 29 regulate registration and announcement matters.
An intellectual creation which should be registered as a result of examination should be approved for registration and publicly announced. Any person may apply to review, transcribe, film or copy the approval document, specification, drawings and all archived materials of publicly announced intellectual creations. However, this shall not apply to those whose confidentiality should be maintained as determined by the competent authority pursuant to law or ex officio, including drawings and all archived materials whose public disclosure is not appropriate.
(6) Articles 30 through 34 regulate certificate-related matters; and Articles 35 through 36 regulate cancellation and revocation matters.
After the effective date of the Guidelines, if indigenous intellectual property which has been registered is to be exploited in the future, a publicly disclosed intellectual creation may be exploited with a reasonable method on condition that the source and exploitation purposes and method are specified, that the interest of the exclusive rights holder of the intellectual creation is not likely to be undermined, and that social convention of exploitation is not violated, in addition to compliance with Article 16 of the Statute for Protecting the Traditional Intellectual Creations of Indigenous Peoples, which stipulates that (1) such exploitation is for personal or family purposes without profit-seeking objectives, (2) such exploitation is essential for reporting, commentaries, education or research; (3) such exploitation is sought for other justified objectives. In this connection, the exclusive rights holder of the intellectual creation may license the intellectual creation to another person for exploitation in accordance with Article 13 of the Statute. In case of exclusive licensing, all parties shall give their signatures, submit their agreement or supporting documents along with their application to the competent authority for registration. Such license shall not be effective without registration.