Newsletter
Boundaries of Fair Use in News-Related TV Programs
Entitling the public to the right to know, the press is known as the fourth estate besides Executive, Legislature and Judiciary. In order to provide full reports on news events, it is very often inevitable to use others' works. Should relevant laws fail to empower journalistic professionals to claim "fair use" under certain circumstances, news reports might be caught in a dilemma, neither conductive to the formation of public opinions nor in agreement with the main purpose of copyright protection. Therefore, exemption regulations concerning "fair use" in news "reports" can be found in Articles 49[1], 52[2] and 65[3] of the Taiwan Copyright Act (hereinafter "said Act"). Though focusing on current news events, news commentary programs—a common TV phenomenon in recent years—are of a more commercial nature than that of general news reports. There are still doubts on whether such programs fall under "the report" defined in said Act, and thus whether they could be exempt from copyright infringement by claiming the fair use when using others' works. The IP Court provides its opinions on this matter in its 2016-Min-Zhu-Shang-Yi-2 civil judgment. In the judgment, the Court first interpreted the phrase "reporting current events" as specified in Article 49 of said Act, limiting it to "simply reporting facts happening on the day said facts happen." Any other news-related TV programs based on news facts, such as features and comments, are not categorized into "reporting current events" as specified in Article 49 of said Act. The Court further noted that any assertion of the fair use under Article 52 of said Act should be examined based on the four criteria listed in Paragraph 2, Article 65 of said Act, including purposes and nature of exploitation, nature of the work, amount and substantiality of the portion exploited in relation to the work as a whole, effects of the exploitation on the work’s potential and current market values, etc. The Court explained that, the defendant involved is a profit-making TV media and the advertising income is its major source of profits; since producing news-related TV programs is beneficial to its own ratings and advertising revenue, its use of the plaintiff's photographic work should be deemed to have commercial purposes. Moreover, the defendant had committed copyright infringement and had, on numerous occasions, forged a settlement with the plaintiff, i.e., the copyright owner. The photographic work quoted by the defendant this time is not a necessary element of news reports, not to mention the rather long play duration and the high amount/substantiality of exploitation by the defendant. The copyright owner has published the work at issue and has authorized others to use it. The unauthorized exploitation of the work by the defendant has caused an adverse impact on the potential and current market values of the work. Therefore, the Court concluded that the defendant is not entitled to claim fair use on the grounds of Articles 52 and 65 of said Act. [1] Article 49: "When reporting current events by means of broadcasting, photography, film, newspaper, network, or otherwise, works that are seen or heard in the course of the report may be exploited within the scope necessary to the report." [2] Article 52: "Within a reasonable scope, works that have been publicly released may be quoted where necessary for reports, comment, teaching, research, or other legitimate purposes." [3] Article 65: "Fair use of a work shall not constitute infringement on economic rights in the work. In determining whether the exploitation of a work complies with the reasonable scope referred to in the provisions of Articles 44 through 63, or other conditions of fair use, all circumstances shall be take into account, and in particular the following facts shall be noted as the basis for determination: 1. The purpose and nature of the exploitation, including whether such exploitation is of a commercial nature or is for nonprofit educational purposes. 2. The nature of the work. 3. The amount and substantiality of the portion exploited in relation to the work as a whole. 4. Effects of the exploitation on the work’s current and potential market value. Where the copyright owner organization and the exploiter organization have formed an agreement on the scope of the fair use of a work, it may be taken as reference in the determination referred to in the preceding paragraph."