What you need to know
The passage of the Act Governing Recruitment and Employment of Foreign Professionals is a missed opportunity to resolve problems involving unpaid foreign artists coming to Taiwan as part of cultural exchanges. If the government is serious about galvanizing Taiwan's cultural economy, a focused discussion that addresses problems with the country's tax system is required, writes Julia Chien.
Taiwan’s white-collar foreign community may be dancing in the streets over the passage of the Act Governing Recruitment and Employment of Foreign Professionals (外國專業人才延攬及雇用法) through the Legislative Yuan on Oct. 31, but Taiwan’s artistic community remains underwhelmed.
The bone of contention is that the Act fails to address a longstanding legal gray area involving the difference between foreign artistic labor and unpaid cultural and artistic exchanges.
The issue has come under the spotlight this year, with Taiwanese artists hit with hefty fines for failing to obtain permits, and their foreign counterparts summarily deported. Moreover, a lack of interest in the issue from government speaks to a reluctance to engage over how to galvanize Taiwan's cultural economy.
First, some background. Under current regulations, any Taiwanese who hosts an event with a foreign artist is the employer of said artist, whether money changes hands or not. These “employers” are obliged to apply for a work permit on behalf of their artist charges. Up to 13 documents are required to make the application, which takes two weeks to process (and another two weeks should the Ministry of Labor request a missing document). Furthermore, until the Act on hiring foreign professional talent comes into force, one has to belong to a registered organization under the ROC government to be qualified to apply.
Aside from being a pain, this convoluted process leaves the door open for innocent mistakes to result in events being cancelled or postponed. In February, Theater Naturally Connected was asked to jump through more hoops than anticipated. The Polish theater group, led by actress Kate Stanislawski, invited playwright Michal Walczak to Taiwan for a workshop, having presented a Chinese production of his work “Sand-pit” here three years ago. They filed an arts and performance arts work permit application, only to have the request turned down by the labor ministry because the playwright was not actually “performing.” The group was instructed to apply for a professional or technical job work permit instead, which requires applicants to have an annual claimed income of more than NT$10 million (US$330,271) and more than NT$5 million in capital — money they did not have.
The workshop, which was subsidized by the government, continued without a work permit, prompting the Ministry of Labor to launch an investigation. The theater group faced a possible fine of NT$150,000 to NT$750,000, and Walczak the prospect of a three-year ban from Taiwan. Just in time, the Ministry of Labor issued a notice that they would not go ahead with the punishment, since regulations regarding the arts and performance arts work permit had recently been modified to accommodate workshops and talks.
In August, British sound artist Simon Whetham and his Taiwanese artist friend Yeh Yu-jun (葉育君) found themselves in a similar predicament. Whetham had entered Taiwan on a tourist visa having agreed to hold a workshop at Yeh’s Taipei art space, Instant 42, in exchange for food and accommodation. An anonymous informer reported the event to the Ministry of Labor, which resulted in Whetham’s deportation and Yeh being slapped with the NT$150,000 to NT$750,000 fine. Yeh said that she did not consider herself Whetham’s employer because their arrangement did not constitute contracted work, but was instead an “art exchange.” In a recent conversation with The News Lens, Yeh expressed her distress over the legal processes, since in order to file for administrative appeal, she is expected to pay the entire fine within 30 days after receiving the verdict: “It is impossible for me to amass such a large amount of money in such a short period of time,” she said.
Such confusion could be easily avoided if only the above-mentioned Act for the Recruitment and Employment of Foreign Professionals had directly addressed the conflation of artistic labor and unpaid exchanges, as legislators had been implored to do in a joint Oct. 18 petition by the Taipei Art Creator Trade Union, Taiwan International Worker’s Association and Taiwan International Student Movement. The petition demands a clear distinction be made between art exchange and artistic labor — with a separate application procedure established for each.
The Act as passed on Oct. 31 fails to do this, but under Article 10, it does allow foreign artists to apply for a work permit directly to the Ministry of Labor, without having to route through an employer. The change should at least help ease paperwork. Traveling artists tend to collaborate with multiple Taiwanese artists or art organizations during their stay, and each of those organizations had each been required to file individual applications for the same artist. However, the Ministry of Labor’s contact window told The News Lens that it would be months before a concrete application procedure gets put into practice and foreign artists are able to apply direct.
It is now up to the Ministry of Labor and the Ministry of Culture to set the regulations around applying for this work permit, including work qualifications and screening criteria — work likely to be completed by spring next year. As it is an employment visa, it is unlikely that these regulations will include provisions for those arriving on unpaid art exchanges. As for qualifications, Ping Chu, founder of Forward Taiwan, which lobbies for the introduction of more streamlined immigration procedure for foreign talent, advocated for the introduction of a trustee system, whereby noted experts in their field can vouch for overseas artists wishing to apply for the visa, especially given that art by nature often lacks formal accreditation. “For example, if Lin Hwai-min (林懷民), founder of Cloud Gate Dance Theatre of Taiwan, says someone is a brilliant dancer and we need him to come to Taiwan, Lin would then be responsible for the authenticity of the dancer,” Chu said.
“The key impediment to the cultural economy is not visas, but tax." — Cultural critic and art promoter Wu Mu-ching
Article 10 is meant to foster greater cultural exchange and vibrancy in Taiwan, yet cultural critic and art promoter Wu Mu-ching (吳牧青) cast doubt on its likely impact. Wu told The News Lens: “The key impediment to the cultural economy is not visas, but tax: whether you host 1,000 people at a concert or 20 at a bar performance, Taiwan’s tax laws on international economic activities stipulate a withholding tax rate of up to 20 percent on all performing foreign artists," he said.
In theory, 20 percent of the artist’s payment is withheld by the Taiwanese organizer and paid directly to the Taiwanese government, while the artist receives the remaining 80 percent. In practice, organizers are expected to pay the full fee to the artist and an extra 20 percent to the government, according to Wu.
He argues that while these tax laws are beneficial to manufacturing businesses and retailers, they create a malignant environment for cultural industry. The extra cost of having to pay the foreign artist’s 20 percent income tax stifles local organizers and inhibits their willingness to take risks, thus artists visiting Taiwan are either extremely famous or entirely underground, while those in between are mostly invited at the behest of government or state agencies.
Wu further contends that the tax policy is creating an unhealthy curatorial culture that is all about selling merchandise or cutting corners on the exhibit itself: “Think about the fraudulent Face of Leonardo exhibit two years ago [when a boy put his fist through a painting purportedly by artist Paolo Porpova]. Concert promotion also becomes a huge gamble; everyone embarks on bidding wars over those pop stars guaranteed to sell, before jacking up prices,” Wu said. “We fail to see the 80 percent of artists occupying the middle ground.”
So while the Act is likely to improve the situation for Taiwan’s white collar professionals, it is at most a half measure when it comes to moving Taiwan’s cultural community forward. In order for Article 10 to achieve its goal of driving cultural and economic vibrancy, there must be a focused discussion involving representative from the Ministry of Finance, Ministry of Labor, Ministry of Economic Affairs and Ministry of Foreign Affairs. Whether this government is willing to invest the time and effort to do so remains to be seen.
Editor: David Green