The immunity provision is different from the fair use doctrine. Immunity provision require certain qualifications such as types of works and exclusive rights. As long as the court considers the qualifications are satisfied, the immunity provision can be applied and it is not required to consider other conditions of fair use. Pursuant to Article 49 (the immunity provision) of the Copyright Law, when reporting current events by means of broadcasting, photography, film, newspaper, network, or otherwise, works that are seen or heard in the course of the report may be exploited within the scope necessary to the report. The immunity provision mentioned above does not require that the exploitation must fall within the scope of fair use to be eligible as an affirmative defense, so the court does not need to consider whether it falls within the scope of fair use in pursuant to Article 65, Paragraph 2. Furthermore, the sentences “works that are seen or heard in the course of the report” in Article 49 are defined as the works which can be perceive by the sensory (Supreme court decision No.2014-Tai-Shang-1352 for reference). For the case at hand, when the newsletter makes the report at issue, it was a certain employee who searched for the photos on the web, and duplicated and compiled them. Accordingly, the photos at issue are not the photo works which are observed by senses of the particular employee while reporting the report provided by Central News Agency, so Article 49 of the Copyright Law is not applicable in this case.

Immunity Provision, Fair Use