TIPS^®  Taiwan Intellectual Property Special

Balancing between Moral Right and Property Right in a Copyright Decision

The Tourism Bureau, Ministry of Transportation and Communication spent about US$30,000, commissioning an advertising company to design a CIS logo for Taiwan. The advertising company gave about US$575 to an artist and obtained a piece of calligraphy of the “Taiwan.” The advertising company then retained a design studio to design a logo based on the calligraphy. In May 2002, the advertising company requested a provisional execution order from Taipei district court, claiming that the advertising company owns the copyright of the “Taiwan” calligraphy and the artist should be prohibited from indicating his name on the calligraphy.

The Taipei District Court rendered a decision based on Article 12 of Copyright Law, ruling that the defendant artist is the copyright owner of the “Taiwan” calligraphy and shall enjoy the moral right and copyright. Although the adverting company acquired the original copy of the calligraphy, the copyright was not conveyed along with the property right of the copy. However, the advertising company is entitled to “use” the copyrighted work according to the “work made for hire” provision of the Copyright Law, and the use shall not interfere the right of the copyright owner. The decision also pointed out that the “Taiwan” CIS Logo has altered the original design of the calligraphy, and is protected as an independent derivative work; therefore, the copyright owner of the derivative work is the Tourism Bureau.

The decision from the Taipei District Court, on one hand, recognized the moral right and copyright of the artist; on the other hand, the losing party enjoys the right to use the copyrighted works. The result balances the dignity of the artist and the economic concerns of the party who makes use of the work.