Originality and Fair Use of Derivative Works

• Main Authors: HU, FANG-YU, 胡芳瑜
• Other Authors: LU, YI-LIN
• Format: Others
• Language: zh-TW
• Published: 2019
• Online Access: http://ndltd.ncl.edu.tw/handle/52md67

碩士 === 東吳大學 === 法律學系 === 107 === 　　As a result of the development of science and technology, more and more ways to obtain other people’s works, so that we can easily access all kinds of knowledge, but also produced quite a lot of controversy. With their own thought as the benchmark, the use of words, photography and painting and other means to express, is the original creation, when the completion of the work enjoy copyright, there is no doubt. But a work that is completed by rewriting, editing or translation, etc., is highly controversial and needs to be clarified, is the work infringing the rights of others? Is the work protected by law? 　　After years of development, copyright act has been better than the initial period of the legal system, but there are still slightly inadequate, and the copyright legal system in all countries are designed according to the specificity of their national conditions and the historical evolution., In the face of loopholes in their own copyright act, even if the copyright act is the following by other countries copyright act, cannot be fully applied to the copyright act of other countries, Therefore, copyright act still has many views that have not been unified, among which “derivative works” has always been an important issue in copyright act, and there are still many undecided points of contention. 　　“Copyright” means the moral rights and economic rights subsisting in a completed work. The author of a work shall enjoy copyright upon completion of the work. Why are the “works” protected by copyright act? Copyright Act is not clearly regulated, only lightly brought in the provisions, which refers to a creation that is within a literary, scientific, artistic, or other intellectual domain, such as oral and literary works, musical works, dramatic and choreographic works, and artistic works, etc. The core “originality” connotation of the work needs to be practiced in specific cases through theory and practice. Derivative works are the display of creativity, if the copyright act to restrict, will cause obstacles to social progress. Therefore, whether to advocate “fair use” as a means of defense, and whether to use the provisions of article 65, paragraph 2, of Copyright Act, as a benchmark for judging is sufficient, is also one of the research priorities of this thesis. 　　This thesis will be based on the implications and development of derivative works, in order to understand the elements of copyright protection, and the relationship of rights and obligations between original works and derivative works, and so on, and then explore the “originality”, “fair use” in derivative works, and through the analysis of domestic and foreign legislative theory, judgment practice to understand how each country to construct its derivative situ protection system, hope that the norms of derivative works can be somewhat clarified. In safeguarding the rights of the original copyright owner, it is also possible to give the derivative works space to balancing different interests for the common good of society, and promoting the development of national culture, which is also in line with the true meaning of copyright act to encourage ideological creation.