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Intellectual Property and Commercial Court


2013 Min Zhu Shang Zi No. 1

Decision No. 2013 Min Zhu Shang Zi No. 1
Date August 15, 2013
Decision Highlight

I.That a corporation may be an author of a work is recognized in copyright laws of various countries in the world, such as Article 201(b) of the U.S. Copyright Act, Article 11, Paragraph 2 of the U.K. Copyright Designs and Patents Act, Article 15 of the Japanese Copyright Act, and Article 9 of the South Korean Copyright Act. This is especially true with regard to work completed within the scope of employment. As of our country, we also recognize that corporations could be authors of works. According to 1988-Tai-Nei-Zhu-637635, “Pursuant to Article 3 Subparagraph 3 of the Copyright Act, ‘Author’ means a person who creates a work, but what does the word ‘person’ refer to? Does it include natural persons or corporations? Pursuant to Article 1 of the Copyright Act, ‘Matters not provided for herein shall be governed by the provisions of other acts’, and pursuant to the Civil Code, the word ‘person’ includes natural persons and corporations. Furthermore, the word ‘author’ in Article 3 Subparagraph 3 of the Copyright Act does not exclude corporations. Hence, it is difficult to reach the conclusion that corporations could not be authors.” In 1992, alongside the Copyright Act’s addition of Articles 11 (Corporations and Employees) and 12 (Commissioning and Commissioned parties), what is currently Article 33 was conducted, which stipulates that ‘economic right in work authored by a corporation exists for fifty years after the public release of the work……’. The legislative explanation of this regulation alleges that “pursuant to Article 11 of the modified code, corporations could be authors, so this article was also modified to regulate the term of protection according to whether the work was released in public or not. This modification can place our Copyright Act in accordance with international legal development.” Thus, the Copyright Act of our country recognizes that corporations could be authors.

II.Moreover, pursuant to Article 3 Paragraph 1 Subparagraph 2 and Article 10 of the Copyright Act, ‘Author’ means a person who creates a work, and the author of a work shall own copyright once the work is completed; provided, where this Act provides otherwise, such provisions shall govern. The ‘moral right’ means that the author of a work may own benefits of personality and spirit, and those right (including ‘the right of publication’, ’the right of paternity’, and ’the right to prohibit others from distorting, mutilating and modifying’) could thus be protected. Our Copyright Act incorporates a binary system, that is, the moral right and the economic right are separable and independent. According to Article 11 Paragraph 1:’ Where a work is completed by an employee within the scope of employment, such employee is the author of the work; provided, where an agreement stipulates that the employer is the author, such agreement shall govern.’ Since the moral right belong exclusively to the author and shall not be transferred or succeeded (referring to Article 21 of the Copyrigh Act), the author can possess the moral right exclusively, even if we can still reasonably restrict its use. Even if the author has passed away or is terminated, the protection of the moral right shall be deemed to be the same as if the author were alive or in existence and shall not be infringed upon by any person (referring to Article 18 of the Copyright Act). Hence pursuant to Article 11 Paragraph 1 of the Copyright Act (modified on January 22, 2014), where an agreement stipulating that the corporation is the author shall govern, the moral and economic right are originally obtained by the corporation. Also, pursuant to the same Article, while the employee is the author of the work but an agreement stipulating that the corporation is the author is made, the economic right is thus transferred to the corporation. However, the moral right is still exclusively owned by the employee. Therefore, the employer can originally obtain the economic and moral right by making an agreement which stipulates the employer to be the author.

III.Investigation shows that the appellant is the employer of Shue-Jeng Tseng. On June 1, 2005, Tseng signed an agreement which stated that during the time Tseng served in appellant’s company, the appellant will be the author of all the works Tseng has created, selected, arranged, adapted, and translated, and appellant could own the economic and moral right (referring to page 15 in the file). The disputed photos were taken by Tseng within the scope of employment, so the appellant originally obtained and can own the economic and moral right according to the agreement. Furthermore, though the agreement states that the appellant may own moral right, this does not amount to its ‘transfer’, and thus does not violate Article 21 of the Copyright Act. Therefore, the moral right of the photos at issue should belong to the appellant and be originally obtained by the appellant, so it might be misunderstood that the appellant could not own the moral right by the original judgement.


Work Completed Within the Scope of Employment

Relevant statutes Article 11 of the Copyright Act Amended and Published on 2014, Jan, 22
  • Release Date:2020-11-13
  • Update:2020-12-03