Can unauthorized derivative works (also known as secondary work)) be protected under copyright law? That is, can the author of an unauthorized derivative work claim rights under copyright law against a third party who infringes on their work? This question arises because unauthorized derivative works likely also infringe on the original work. In such cases, it may seem inappropriate to allow someone who infringes on the original copyright to claim rights against a third party through copyright law. However, since the derivative work involves the author's own creative efforts and contributions, it seems unfair not to allow the author to claim infringement against a third party.
 
In Taiwan, the issue of whether unauthorized derivative works are protected by copyright law can be seen in various court decisions. However, previous court decisions on this topic often contain brief discussions. Recently, the Supreme Court directly addressed this issue in a rare move, stating: In cases where a derivative work is made without the original author's consent or authorization, thus infringing on the original author's right to create derivative works, whether the completed derivative work should be protected by copyright law is not clearly defined by law, and opinions among practitioners and scholars are not unanimous. There are both affirmative opinions (should be protected) and negative opinions (should not be protected). This Court believes that the affirmative opinion should prevail.
 
In its 111 Tai-Shang No. 5457 criminal judgment ,the Supreme Court believes that derivative works made without the original author's consent or authorization can also be protected under copyright law, for the following reasons:

1. According to the constitution which guarantees freedom of creation and the legislative purpose of copyright law, the creations of authors must be protected. However, it is also necessary to consider the transmission and exchange of human knowledge, to promote the sustainability and enrichment of cultural assets, and to balance the public interest with protecting the rights of authors. The interpretation and application of copyright law, when faced with conflicts between public interest and the rights of authors, should aim for a balance to avoid hindering the development of national culture.

 

2. Creations can be categorized by their method of creation into two types:

• Original works, which belong to the realms of literature, science, arts, or other academic fields. Original works that are eligible for copyright protection must possess originality, i.e., they must reach a level of independent creative effort sufficient to express the author's personality or uniqueness.
• Derivative works (also known as adaptations or secondary work), are not a category explicitly listed in the copyright law but are works based on original works, through translation, arrangement, rewriting, filmmaking, or other methods. The type of derivative work depends on the form it takes after completion, and is protected under Articles 22 to 29 of the copyright law concerning property rights. Any use of an existing work to create a new one, wherein the author's own innovative intellectual efforts sufficiently express their personality or uniqueness, meets the requirements for copyright protection and thus qualifies as a derivative work.

 

3. Original works and derivative works are two separate and independently protected creations; the rights of the original work are not affected by its adaptation. The distinction between a derivative work and a mere reproduction of the original lies in the originality of the derivative work, which entitles it to copyright protection and contributes to the development of national culture. Our copyright law, based on the principle of creativity, recognizes that the intellectual contributions and innovations made by the adapter in creating the derivative work sufficiently express the adapter's personality or uniqueness, thus meeting the criteria for copyright protection. The affirmative view holds that derivative works completed without the consent or authorization of the original author should still receive copyright protection. However, the adapter is still required to bear civil and criminal responsibility for any infringement of the original author's rights. This approach achieves a balanced resolution between public interest and the protection of authors' rights, is constitutionally sound, does not violate the constitutional guarantee of freedom of creation, and aligns with the legislative purpose of Article 1 of the Copyright Law.

 

4. The administrative authority responsible for copyright law has also adopted the same stance in its past administrative interpretations. Judges, when ruling on cases, should respect these interpretations made by the competent copyright authorities, as long as they are appropriate.

 

5. The 1970 Copyright Law of Japan removed the provision from the 1889 law that required adaptations to be "lawful" as a prerequisite for derivative works. The provisions concerning derivative works in Taiwan's Copyright Law are primarily modeled after Japan's 1970 Copyright Law. Interpretations of Taiwan's law should therefore consider the current Japanese Copyright Law as a reference.

 
Based on the principle of judicial independence, there could still be varying opinions on this issue. However, with decisions that explicitly express a legal opinion in place, the view that copyright protection for derivative works does not require lawful adaptation as a prerequisite should generally prevail.
 
Additionally, it can be anticipated that under the viewpoint affirming copyright protection for unauthorized derivative creations, if a derivative creator initiates litigation, there will be more scrutiny and debate over whether their work is merely an imitation of the original or if it embodies sufficient creative spirit to express the adapter's personality or uniqueness. Courts will likely examine this criterion more rigorously.
 
[This article provides only a general overview of the issues discussed and does not constitute legal advice or conclusions regarding any specific case. It also does not necessarily represent the positions of this firm or its clients. If you need specific legal advice, please consult a professional attorney.]