I.Article 37 of the 1998 Copyright Act stipulates that “The economic right holder may license others to exploit the work. The territory, term, content, method of exploitation, and other particulars of the license shall be as stipulated by the parties; particulars not clearly covered by such stipulations shall be presumed unlicensed.”, “A licensee referred to in the preceding paragraph may not sublicense the rights inherent in the license to any third party for exploitation without the consent of the economic rights holder.” The statute does not differentiate between exclusive and non-exclusive licenses. Therefore, even an exclusive licensee has to obtain consent from the original economic right holder if the licensee wishes to sublicense the rights inherent in the license to any third party. This demonstrates that the meaning of an exclusive license is different in the 1998 and current versions of the Copyright Act. Before the 2001 Copyright Act amendment, an exclusive license only possesses the effects of a contract, and the economic right holder could still exercise rights within the scope of the exclusive license.

II.Second, in “right violating unjust enrichment” of “non-prestation based unjust enrichment”, when a recipient’s interests are from infringing rights rather than prestation of the person who suffers damages, the person damaged needs to prove that the fact of infringing exists. (See Supreme Court decision No. 2011-Tai-Shang-899) Investigation shows that, though license contract 1, 2 and the consent of sublicense all use the term "exclusive license", but the Copyright Act at then does not stipulate “the economic right holder may not exercise right within the scope of an exclusive license”. The exclusive license just possesses the effects of the contract. Therefore, even if the defendants sublicensed the rights to the outsider, S?n Yi Xi?n Co., they are just exercising their rights and did not infringe the plaintiff’s rights. In such case, the plaintiff’s claim that the defendants constituted unjust enrichment is groundless.

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.

Exclusive License, Sublicense, Contract, Unjust Enrichment