The Supreme Court rendered the 109-Tai Shang-3948 Decision of September 17, 2020 (hereinafter, the “Decision”), holding that the scope of the lawful exploitation of a work under Article 12, Paragraph 3 of the Copyright Law which provides that the commissioning party may exploit the work, should be determined by the purposes of the commission or of the contract.
According to the facts underlying this Decision, Defendant A and Complainant Company B entered into an online marketing agreement (hereinafter, the “Agreement at Issue”) under which B was delegated to conduct online marketing for A, and both parties also agreed that the personnel of Company B would produce relevant photographic works and literary works (hereinafter, the “Works at Issue”) for A. Fully aware that the Agreement at Issue had been terminated, and without Company B’s consent or license, A reproduced the Works at Issue whose copyright is enjoyed by Company B and uploaded the same to a webpage for publicly transmission and being browsed by non-specific persons.
According to the Decision, Article 12 of the Copyright Law provides that the copyright of a work completed under commission shall belong to the commissioned party, but the commissioning party may exploit the work. The scope of exploitation with respect to the provision that the commissioning party may exploit the work should be determined by the purposes of commission or of the contract. The reproduction or adaptation within such scope is permitted by law.
It was further indicated in this Decision that the clauses of the Agreement at Issue have specifically provided that the copyright of the Works at Issue should belong to Company B and have restricted the purposes, scope and manners of A’s exploitation of the Works at Issue. Since A uploaded the Works at Issue to the webpage of another brand he operated, which is not the product marketing set forth in the Agreement at Issue, A certainly cannot assert that he has the right to reproduce and publicly transmit the Works at Issue. The original trial court determined in its decision that A did infringe the copyright belonged to Company B with its basis and reason specified in detail. Thus, the gist of A’s appeal, which criticized the original decision’s impropriety, is inconsistency with evidentiary materials and not an appropriate reason for appealing to the third instance court.