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Can Fair Use Protect One from Infringement of the Right of Paternity?
Article 65, Paragraph 1 of the Copyright Act provides that "Fair use of a work shall not constitute infringement on economic rights in the work." Nevertheless, the Intellectual Property Court took two different views in the case under 102-Min-Zhu-Su-Zi-57 (judgment delivered on August 6, 2014) and its appeal under 103-Min-Zhu-Shang-Zi-26 (judgment delivered on June 25, 2015) on whether the 'fair use' under this section can protect one from infringement of the right of paternity if the person exploiting the author's work does not provide a clear indication of the source of the work pursuant to Article 64 of the Copyright Act.
The Plaintiff was a cardiovascular surgeon. For the benefit of the public, he had compiled his experiences related to the causes, types and symptoms of varicose veins, and tips on self-checking, medical check-ups, treatment, and prevention, in a series of articles which he wrote and uploaded on the website of the Plaintiff's clinic. Subsequently, the Plaintiff discovered under an article entitled "Varicose Veins" carried by the Defendant hospital's website, that some of his works on symptoms, self-checking, prevention and healthcare, etc., had been plagiarized by way of cut-and-paste and unauthorized revision before being coalesced with works of other hospitals and doctors, which the Defendant hospital also copied without consent. In addition, the Plaintiff's name was not indicated in the said website, and the Defendant had even audaciously inserted the term "Copyright (C), All rights reserved by [the Defendant]". The Defendant also stated its hospital's name in a prominent position on the web page. As such, the Plaintiff had alleged infringement of his moral rights and economic rights of authorship. The court in the first and second instances both held that the Plaintiff was actually the copyright owner, and that the Defendant had indeed used his work. However, considering that the goal of the Defendant was aimed at public health education instead of commercial purposes, and that the Plaintiff's copyright involved works of expression of existing facts, that neither the quality nor quantity of those parts of the Plaintiff's works had exceeded fair use, as well as the fact that the Defendant's said use of such works had had no impact on the potential market, the court in both instances held that fair use defense shall apply to this case. However, regarding whether the Defendant had infringed upon the author's right of paternity by failing to expressly attribute the source, the court in the first and second instances held contrasting views.
The court in the first instance held that under Article 65, Paragraph 1 and Article 66 of the Copyright Act, although the Defendant demonstrated fair use of the materials and that it did not commit infringement on economic rights of authorship, fair use per se does not prevent infringement of the right of paternity. Since the Defendant had failed to reasonably explain that certain parts were copied from the Plaintiff's work, there was a likelihood of it misleading others into thinking that they were original works of the Defendant hospital. By reason of the aforesaid, the court held that the Defendant had infringed on the Plaintiff's right of authorship.
Nevertheless, the court in the second instance held a different view. It said that although the Defendant failed to indicate the source in accordance with Article 64 of the Copyright Act, so long as it had met the conditions for fair use under Article 65, it would not amount to infringement of the right of authorship.
Indeed, the Intellectual Property Court in other precedents － such as that under 103-Min-Zhu-Su-Zi-57 (judgment delivered on August 6, 2014) － was inclined to accept the view of the court in the first instance in this case. It held that fair use did not necessarily protect one from infringement of the right of paternity. Instead, it would depend on whether such action would have misled others into thinking that such work is by an anonymous author or by another individual. Obviously, this view is contradictory to that of the court in the second instance in this case, which held that fulfillment of the conditions for fair use under Article 65 of the Copyright Act would not have amounted to infringement of the right of paternity. Therefore, the relationship between fair use of work and annotation of its origin and/or the right of paternity is one that is yet to be resolved.