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|Other Titles:||An Empirical Study of Taiwan Courts’Opinions on Fair Use Four-Factor Test|
Article 65(2) of the Taiwanese Copyright Act;Fair use doctrine;Four-factor test;Empirical research
|Issue Date:||2016-09-05 11:39:41 (UTC+8)|
As a “breathing space”, the scope of fair use is uncertain to prohibit the spillover effect of copyright. In this empirical study, we will explain and verify how the fair use doctrine used in Taiwanese legal system. The perplexity occurred when the Section 107 of the U.S. copyright law was transplanted into Article 65(2) of Taiwanese Copyright Act years ago. Even though rules were clearly announced by the authority body, it could not be assured the courts would follow the rules. As the the myth goes “Leniency to those who confess their crimes and severity to those who refuse to”, it was not true in some empirical analysis. Reviewing the four-factor test, the courts prefer to interpret the first factor as the question of whether it was commercial use. In the second factor, because it was difficult to define “the nature of the work”, the courts prefer to replacing with “the category of the work”, making it easier to operate and predict. The third factor, the easiest one to sentence judgments, has usually been ignored when examining so-called “the core value of the work”. Meanwhile, the courts may misapply denominators in the review of this factor in some cases. For the fourth factor, the courts mainly focused on whether the infringing product or work may spread around in the the market. In practice, the courts usually announced rulings on not only the first and third factors but the fourth, tightly joining with the first one. To our supprise, the interaction between the fourth factor and its elements recognized by the courts was different from the rules. This appearance might be resulted from the outcome of the first factor examination. In short, even though the courts literally examined four factors to decide the scope, they did not follow in real, probably resultig from the difficulty of interpreting the second factor. Since fair use concept is a tradeoff between flexibility and certainty, the localization of the four-factor test shall be thoroughly considered. Back to the legislative history and the spirit of fair use, obviously, the better solution would be to give more time and space for the Supreme Court to mold prejudications for lower courts to use the test first.
|Relation:||政大智慧財產評論, 10(2), 133-237|
NCCU Intellectual Property Review
|Appears in Collections:||[智慧財產評論] 期刊論文|
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