According to Article 11(1) and (2) of the Copyright Act, "Where a work is completed by an employee within the scope of employment, such employee is the author of the work; provided, where an agreement stipulates that the employer is the author, such agreement shall govern. Where the employee is the author of a work pursuant to the provisions of the preceding paragraph, the economic rights to such work shall be enjoyed by the employer; provided, where an agreement stipulates that the economic rights shall be enjoyed by the employee, such agreement shall govern." That is to say, where an employee, based on an employment relationship, uses software and hardware provided by the employer, and creates a work in the course of the employer’s business or in the performance of assigned duties, the employee is, in principle, deemed the author of such work, and the employer holds the economic rights to the work. For example, work completed by a teacher while performing administrative duties at a school or tasks assigned in connection with teaching are, in principle, considered works created in the course of employment.

 

In the case facts of Judgment No.: 114-Ming-Zu-Shang-Yi--11 rendered by the Intellectual Property and Commercial Court ("IPCC"), the IPCC has recognized that images created by the teacher (Plaintiff and also Appellant), pursuant to the principal’s instructions, for the purpose of promoting the school’s curriculum constitute administrative work performed in conjunction with the teacher’s teaching duties or tasks assigned in connection with teaching; as such, they are works created in the course of employment. The IPCC advised that this determination is not affected by whether the teacher serves as a full-time administrative staff member or as a full-time teacher.

 

In the aforementioned case, the teacher also argued that when the principal used the images created by her, he failed to specifically credit the teacher as the author, and claimed that the right to attribution had been infringed. However, the IPCC stated that, according to general social norms, schools generally do not credit the author in promotional materials when introducing or promoting their curriculum and distinctive features to the public. Therefore, even if the principal used images created by the teacher in the course of her duties without specifically crediting the teacher as the author, it is difficult to conclude that there was any risk of harm to the teacher’s moral rights. Consequently, there was no basis to suspect an infringement of the teacher’s right to attribution, and the IPCC dismissed the teacher’s claim.

 

According to the spirit of the aforementioned judgment, for works created by teachers in the course of their duties—whether created proactively or passively upon assignment, with or without additional compensation or allowances, and whether completed during school hours or at home after work—the school generally holds the “copyright.” Whether a school’s failure to specifically credit the teacher’s name when using such works constitutes an infringement of moral rights must still be determined based on generally accepted social norms.