The copyright of a work is vested in its author.  If another person wishes to use the work of such author, that person would be required to obtain the relevant rights or a license from said author.  However, the duration of copyright is a very long time. According to Paragraph 1, Article 30 of the Copyright Act, copyright rights shall survive for the lifetime of the author and fifty years after the author’s death.  Therefore, if during the lifespan of the copyright of a work it becomes unclear who its author is, or if the author is dead but his/her successor is unclear, how may a third party proceed to use such copyright?

For works which fall under the category of the cultural and creative industry, Paragraph 1, Article 24 of the Law for the Development of the Cultural and Creative Industries — an act that aims to promote development of the cultural and creative industry — particularly stipulates: “if a copyright user makes its best effort but fails to obtain a valid authorization from the copyright owner due to either the identity or the location of the copyright owner being unknown, the user may clarify the reason for his failure to obtain such valid authorization to the copyright competent authority.  After the copyright competent authority confirms the reason reported by the user through investigation, it shall grant the user an approval of license to utilize the work within the permitted scope with the condition that the user deposits royalties in the amount determined by the copyright competent authority.”

Pursuant to the aforesaid provision, the Taiwan Intellectual Property Office (“TIPO”) permitted a user to use the musical work of an unknown author by an “Approved License” in its order Zhi-Zhu No. 10416002442 dated April 22, 2015 (“the Order”).

In the foregoing case, the TIPO took the view that the user met the condition of “making his best effort” since the user had taken various steps to locate the author and even placed an advertisement in a newspaper inquiring about the ownership status of the copyright but received no response after 30 days.  After an investigation conducted by the TIPO, the TIPO merely learned that the original author was deceased, but the TIPO was still unable to locate the author’s successor.  The TIPO therefore accepted that the condition of “the identity or the location of the copyright owner being unknown” was met, and subsequently issued an approval to the user for utilization of said musical work within the permitted scope.

In addition, pursuant to Paragraphs 3 to 5, Article 24 of the Law for the Development of the Cultural and Creative Industries, the TIPO expressly stated in its Order the conditions and scope of this Approved License (such as the conditions for duplication, rental and dissemination, public performance, licensed territory, and the nature of the license being non-exclusive).  The TIPO also required the user to expressly disclose the license date, reference number, foregoing conditions and scope of the license in copies on the user’s works.  The user was also required to deposit a specific sum of royalties as remuneration in accordance with the Order and report the TIPO the status of the deposit before using said work.

If during the license period the author of the licensed musical work lodged an objection with respect to such license, the TIPO may rescind the approval of license.  If the user is found to have made a falsified application or failed to use the work in the permitted manner, the TIPO shall immediately rescind its approval (please refer to Paragraphs 6 and 7, Article 24 of the Law for the Development of the Cultural and Creative Industries).