Study of Moral Rights in Taiwan: Focusing on Transfer, Inheritance, and Protection Term
Date Issued
2013
Date
2013
Author(s)
Hsiao, Hui-Tan
Abstract
Personality rights are regarded by practitioners of conventional jurisprudence to be exclusive to certain individuals and therefore cannot be transferred or inherited. The moral right is a personality right; the copyright law of Taiwan stipulates that the moral right cannot be transferred or inherited. In today''s society, where there are huge volumes of business activity, personality rights and moral rights create economic benefits. Judging from the perspective of the economics of law, the inability of the moral right to be transferred or inherited is inefficient, particularly in Taiwan, where the moral right is, in principle, permanently protected. This paper explores the possibility of transferring or inheriting the moral right.
German law recognizes the economic benefits and inheritance of personality rights. In cases where economic benefits of the personality rights are infringed upon, the victims have the right to claim damages. However, no breakthroughs have been made in the transfer of personality rights. Some scholars propose a "Limited Transfer" theory, which attempts to make possible the transfer of personality rights. This theory was originally directed at copyright law.
From the perspective of comparative jurisprudence, industrialized nations, such as Germany, the UK, and France, permit the inheritance of the moral right. Germany permits the transfer of the moral right so long as the transfer is stipulated in a contract. In addition, article 31-1 of its copyright law stipulates that people other than the creator of the moral right may be authorized to use the personality benefits of works via the right to use. Moreover, a core theory has been developed that stipulates that any transfer of the core parts involving the personality benefits of a work shall be deemed invalid.
The number of years for which the moral right is protected should be the same as that of the property right for a work. This allows such protection to be meaningful and efficient. The Berne Convention only stipulates that the number of years of protection should be no less than that of the property rights for a work.
In the conclusion of this paper, I recommend amending Article 18 of Taiwan''s Copyright Law so that it reads as follows: The duration of the moral right shall be the same as that of the property right for a work. I also suggest amending Article 21 of the same law so that it reads as follows: The moral right shall be inheritable. Of which, the right of publication and the right of attribution shall be transferrable to the copyright owner, along with the property right for a work, based on the purpose of utilization and property rights.
This paper also provides an analysis of the moral rights-related rulings from Taiwan''s Intellectual Property Court, issued between July 1, 2008—the date on which it was established—to June 30, 2013, in hopes of understanding the views of its judges and providing a reference to those people concerned with moral rights-related issues.
Subjects
著作人格權
人格權
讓與
繼承
著作權
Type
thesis
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