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Copyright Issues in Brokerage Contract of Entertainer -
The Intellectual Property and Commercial Court Judgment 112-Min-Zhu-Shang-Zi-5
Appellant filed an appeal with the Intellectual Property and Commercial Court (the "IPCC"). In its claim, Appellant asserts that it owns the copyright to the video that it planned for filming for Appellee during the term of the Brokerage Contract. With the cease and desist letter of 23 June 2021, Appellant terminated the Brokerage Contract it signed with Appellee and expressly refused to let Appellee continue to use the video to which Appellant holds the copyright. In response to Appellee's refusal to remove the video from the social media site managed by it, Appellant filed an action to remove the infringement in accordance with Article 84 of the Copyright Act.
IPCC examines and provides insights into the following three issues pertaining to the case:
I. Whether the Brokerage Contract has been terminated, and, if so, the time of its termination
From the messages of 27 January 2021 between Appellee and Appellant's company manager on the messaging app LINE and from the fact that Appellant has not delegated any assignments to Appellee since 27 January 2021, IPCC determines that both parties on 27 January 2021 came to an agreement on the early termination of the Brokerage Contract.
II. The ownership of the economic rights to the video
(i) Article 3-1(14) of the Copyright Act provides that "Publication" means distribution by the rights holder of a sufficient number of copies of a work to satisfy a reasonable level of public demand.
Article 515 of the Civil Code provides that A contract for publication is a contract whereby one of the parties agrees to deliver for publication writings of a literary, scientific, artistic, or other nature to another one of the parties, who agrees to print or in other ways to reproduce and publish the said writings.
The video in this case is not a copy offered to the public in a given number in the form of an attachment to a physical item, such as "a record, compact disc, recording tape, videodisc, videotape or photo album, or any other product comprising performances, words, images, or photos." As the video in this case is merely uploaded to a social media site managed by Appellee, it should be deemed to be public transmission, rather than publication or publishing provided in Article 4 of the Brokerage Contract.
Furthermore, the same article of the Brokerage Contract does not contain any expressions meaning "including but not limited" as asserted by Appellant. It cannot be determined from the meaning of this article that Appellee has agreed to let Appellant have the economic rights to the audiovisual works planned and produced by Appellant for Appellee.
Accordingly, IPCC finds Appellant's claims to lack merit.
(ii) Audiovisual works refer to works that can be attached to any media, whether with or without sound, and that feature images shown in films, video recordings, video cassettes or computer monitors, and other series of images presented using machines or equipment.
The video in this case is an audiovisual work in the nature of a talk show where Appellee's program production and broadcasting team, the host, and the participating guests ("Appellee et al.") engage in an interactive Q & A. Since the program is a joint effort by Appellee et al., no party can single out and extract their work for their separate use; accordingly, the program should be in the nature of a joint work. Except as otherwise agreed and provided, Appellee et al. should be the joint authors of the audiovisual work and jointly own the economic rights thereto.
As to the extent to which each author participates in the creative process, it is a question of what share of the economic rights to the audiovisual work each may claim and does not affect their status as joint authors.
Given the above, it should be determined that Appellee has participated in the creative process of the video and is not simply a performer. Instead, Appellee is one of the joint authors of the video.
III. Is Appellant's request under Article 84 of the Copyright Act to Appellee to stop using the video, remove it from Appellee's social media site, and dispose of it based on legitimate reasons?
The video was uploaded before the termination of the Brokerage Contract, and the purposes of use stated in the contract were not violated at the time of the upload. Both parties have stipulated a specific termination date of the contract, but not any provision requiring Appellee to remove any videos uploaded to social media sites during the term of the contract upon termination thereof.
Appellant has repeated claimed in this suit that even though the video is a joint work, the jointly-owned economic rights thereto may not be exercised by Appellee unilaterally without the consent of every economic rights holder thereof. However, despite claiming so, Appellant has not given any legitimate reasons explaining why it refuses to consent to Appellee's use of the video before the conclusion of the oral argument.
Accordingly, Appellant's request to remove the alleged infringement under Article 84 of the Copyright Act on the basis of its claim that Appellee's use of the video without its consent has infringed the economic rights to the joint work is not deemed legitimate.
The case is being appealed in the Court of third instance.