昨天某在台外國朋友社團有人問了有關「二創」是否合理使用（fair use）的問題，還給了個標準「二創」的例子。正好我手邊有十分鐘空檔，於是就順手打了如下的回答：
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All right. So you think that scenario you've described constitutes "fair use."
Well, most unintentional infringers think that (wishfully) too -- many of them YouTubers, and quite a lot of them tend to be wrong.
What constitutes "fair use" as an affirmative defense against copyright infringement, is perhaps one of the most mysterious questions under the Copyright Act, and many copyright systems around the world. And four-factor test under Art. 65 of the Copyright Act is commonly mistaken, e.g.,:
- I have not made profit so it's fair use;
- I have no intent to infringe so it's fair use;
- I only took a "small" or "insignificant" portion from the original so it's fair use;
- I am a teacher this is for my students so it's fair use;
- Oh this is but a derivative work (as I just took reference of the original and then add creative elements into it) so it's fair use;
The list goes on and on, but you know where this is going: most of those arguments/defenses do not hold up in court, Taiwanese or US.
Like I said, fair use is essentially an infringement exempted statutorily by the legislator, in order to put a balance between rights and ownership power of personal (intellectual) property and the common good. Hence the name "affirmative defense." And infringement is even simpler: any appropriation/exploitation of the expressions (and/or elements therein) of the original WITHOUT license/authorization, is an infringement.
So, to comment briefly on your example:
1. Yes. It's quite likely to be held an infringement (and it's rather obvious).
2. Whether it's fair use or not really depends on the law (and of course you'd need to explain carefully what that "larger project" is in detail); but it seems your understanding of the concept of fair use is likely to be contradictory to the law.
3. Unfortunately, your understanding of "derivative work" is also likely to be not quite accurate; and mind you: any "derivative work" (even if it is) WITHOUT license is essentially an infringement.
4. The photograph is a copyrighted creation of the original photographer so the "derivative work" (or as some "creative" Taiwanese folks would call it, "secondary creation") is an infringement of the photograph's copyright. (Whether the photo shooter acquired the permission from the model, that's another issue.)
I guess as a veteran IP lawyer who handles his fair share of IP disputes, that's as far as I can tell you without asking you to pay. XD
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我版上接觸藝文創作與文創的朋友未必看得懂我跟外國朋友講的這一大段。所以用中文簡單講：
-- 主張合理使用的人當中，有很大一部分都是「自以為」（wishful thinking）；但這類自以為的合理使用主張，多半通不過法定基準（four-factor test）的檢驗。
-- 至於「二創」...沒有什麼二創。未經他人授權而利用他人受著作權保護之創作，基本上，就是侵害著作權之行為。
-- 台灣著作權法體系跟美國相比，對於合理使用作為積極抗辯（affirmative defense）的地位有不同的法概念與適用方式；但有關合理使用沒那麼容易隨便就成立這件事，實務上則是差不多。
-- 有些蠻特別的說法，例如「二創」就是合理使用（蛤？），或者「我是衍生著作所以就是合理使用」（蛤？），「我沒賺到錢就是沒有盈利就是合理使用」（...）之類的，我實在是已經懶得在不收錢的狀況底下回覆了。
最後，台灣藝文文創界包含新生文創的大公司、大集團與老字號娛樂事業公司在內，對於著作權的概念之...模糊不清與扭曲，實在是到了令我恐慌症發作的地步。
更可怕的是，連他們用的律師都概念不清。
文章摘自作者臉書
Yorumlar