Jane Tsai and Sally Yang
Previously, authorities in charge of cultural and art procurement usually treated copyrighted works produced from a contract based on the principles such as “contractor’s (author) consent to waive his/her moral rights” and “all economic rights belongs to the authority,” causing difficulties for these procurements to attract outstanding cultural and artistic workers and businesses to attend bidding. To improve the current status quo and further protect the interests and rights of workers and businesses in the cultural and arts industry, the Ministry of Culture and the Ministry of Economic Affairs have issued on October 5, 2021, the “Copyright Protection Regulations for Workers and Businesses of Cultural and Arts,” (hereinafter ”this Regulation”) per authorization of “Culture and the Arts Reward and Promotion Act,” effective on the day of publication.
I. Applicable Scope —Cultural and Arts Procurement, Subsidy, or Call for Submission
1. Unless otherwise specified in other regulations, in the event that any authorities or juridical persons in charge of cultural art procurement, subsidy, or call for submission, its relevant copyright protection of cultural and art workers or businesses, protection of the are within the scope of this Regulation. (Article 2)
2. If an authority or a juridical person in charge of public cultural and art matters via means other than procurement, subsidy, or call for submission, the relevant copyright protection of cultural and art workers or businesses may be handled by referring to this Regulation and via means of obtaining minimum rights or licensing agreement as a principle. (Article 25)
II. Principle of Copyright Agreement Interpretation
Any copyright agreement shall be in writing if an authoriyy or juridical person intends to procure, subsidize, or solicit cultural or artistic works. If such an agreement comes into doubt, the interpretation that favors cultural and artistic workers the most shall be adopted. (Article 7)
III. Copyright Protection
This Regulation expressly stipulates that “authorities or juridical persons procuring, subsidizing, or call for cultural art works submission shall protect the author’s copyright” and regulate the content, methods, the author’s right to claim the work under his/her name, and the author’s right to maintain the nature of his/her creation (Article 4):
1. If a work produced by the authority’s or juridical person’s cultural and art procurement, subsidy, and call for submission, are not yet published, such an authority or juridical person shall make appropriate agreements regarding the content and methods of publication pursuant to the nature of the work and the necessity of its use.
2. Regarding the produced work, unless the author expressly indicates otherwise, his/her name(s) shall be displayed. However, this does not apply under the following circumstances: (1) an agreement was made to use appropriate simplified names of the author; and (2) the author’s name can be omitted if there are difficulties due to the method and purpose of how the work would be utilized, or if it does not violate common conventions.
3. When an authority or juridical person procure, subsidize, or solicit cultural and art works, it shall respect the rights that the author may exercise in accordance with Article 17 of the Copyright Act [1].
IV. Copyright Agreement Protection
This regulation distinguishes copyright provisions for different forms of cultural and arts affairs as follow:
| Content | Cultural Arts Procurement | Cultural Arts Subsidy | Call for Cultural & Arts Submission |
| Principle for Licensing of Economic Rights | Use non-exclusive licensing to obtain economic rights. (Article 8) | Use non-exclusive licensing to obtain economic rights. (Article 11) | Use non-exclusive licensing to obtain economic rights. (Article 15) |
| Exceptions for Licensing of Economic Rights | Under any of the following circumstances, authorities or juridical persons may partially or wholly obtain economic rights or exclusive licenses by agreement:
1. The works are procured specifically for the needs of authorities or juridical persons. 2. The work involves the privacy or personal data of others kept by the authorities or juridical person. 3. The work is related to an authorities or juridical person’s security and confidential information. 4. The work is used as a basis or reference for major national policy or operations. 5. Other circumstances that ensures public participation, reading, utilization, and sharing of cultural interests. An authority or juridical person shall determine whether sub-licensing agreement is needed when obtaining a non-exclusive license. (Article 8) |
Under any of the following circumstances, authorities or juridical persons may partially or wholly obtain economic rights or exclusive licenses by agreement:
1. An authority or juridical person deemed as necessary to promote cultural artworks continuously for the purpose of subsidization. 2. Other circumstances that ensures public participation, reading, utilization, and sharing of cultural interests. Copyright agreements shall be stated in the subsidy guidelines or related information.If necessary, consult the relevant businesses, organization, or experts in advance. (Article 11) |
Works exclusively used for a special purpose and whose conditions of call for submission sufficiently show that the content of the work shall be used exclusively by an authority or juridical person may have its economic rights owned, partially or wholly, by an, and may be an exclusive licensing by agreement. |
| Ownership of Copyright | The copyright ownership shall belong to the contractor or the actual author. However, if deemed necessary under Paragraph 1, clause 3 or 4 of the above additional provisions, the authorities or juridical person may be, by agreement, the copyright owner. The aforementioned additional provisions shall be limited to the circumstances that the contractor performing the procurement contract is a natural person. (Article 9) | The copyright owner shall be the person being subsidized or the actual author. (Article 12) | The copyright owner shall be the participant of the call for submission or the actual author. (Article 17) |
V. Conclusion
Although the current cultural and art procurement regulations and the guidelines of an authority’s procurement procedure require an authority to approach a work’s copyright and ownership in a reasonably necessary manner and via means of licensing in general, a “reasonably necessary” manner as determined by an authority remains bias toward it in practice. Thus, in consideration of the above, Articles 4 and 8 the Regulation expressly stipulates that authorities shall in principle “protect the author’s copyright” and “obtain copyright ownership via non-exclusive licensing.” Moreover, Article 24 explicitly indicates that each authority’s resulting works shall be reported to the central authority, the Ministry of Culture, to be consolidated and published to ensure that matters with regards to copyright protection are properly handled. Overall, as this Regulation is an administrative order and has no relevant legal effects or penal provisions, it remains to be seen whether this Regulation can promote the protection of the rights and interests of cultural and art workers in an agency’s procurement.
[1] Article 17 of the Copyright Act: The author has the right to prohibit others from distorting, mutilating, modifying, or otherwise changing the content, form, or name of the work, thereby damaging the author’s reputation.