1.Taiwan's Wisdom Creation Exclusive Right is Different from Conventional Intellectual Property with Special Legislation, but There are Challenges.
Aboriginal wisdom creation in Taiwan is protected by the exclusive right of wisdom creation under the ordinance embodied in the Aboriginal Peoples Basic Law, which is based on the Taiwanese Constitution. The term of protection of the exclusive right for wisdom creation is permanent, which is very different from the conventional intellectual property right. The Aboriginal original Committee is in charge of reviewing the wisdom creation.
However, there are some issues to be addressed, including the granting of exclusive rights in the public domain, the appropriateness of having to re-register existing aboriginal creations, and whether the protection should include the concept of wisdom creation.
2.Lalu case shows that there is room for consideration regarding the development of a law that identifies the true protected legal interest.
In the Lalu case, the Aboriginal Affairs Commission refused the Thao to register the exclusive right of Wisdom Creation on the grounds that Lalu, for which a third party already had trademark rights, was only a place name and was not included in the category of Wisdom Creation. On the other hand, the Court ruled that the Thao should have the right to enjoy their own creations that already existed as aboriginal ones because of the need to protect the cultural rights of aboriginal peoples.
In the semiotic approach, a symbol is divided into two parts: the perceptible aspect "monistic"(SIGNIFIANT) and its psychological content "mental" (SIGNIFIÉ). If the requirements for registration are met, both the trademark and the exclusive right to create wisdom can be registered. The Lalu case leaves some room for consideration of the true legal interest in protection.
3.The Ami Tribe's exclusive rights case is not a good idea to bring fair use to wisdom creation.
The plaintiff, the Ami Tribe, filed a lawsuit against the Aboriginal Committee for its use of the already registered Ami Tribe's Wisdom Creation at an event. The plaintiff claimed that the defendant's actions desecrated its traditions and customs, etc., and the defendant claimed that its own actions constituted fair use, etc. The court did not decide the claims related to infringement of rights, and held that there was no liability for damages based on state compensation or tort liability under the Civil Code.
However, the unlicensed nature of the work and the defendant's conduct itself are of concern from the perspective of the property rights and personal rights of the exclusive right to intellectual and creative works. In addition, fair use, a means of reconciling private rights and public interest recognized under Taiwan's Copyright Act, is a defense in cases where copyright, a private right, has been infringed.
On the other hand, the exclusive right of traditional wisdom creation of aboriginal peoples is a special right guaranteed by international treaties and the Constitution. Then, the exclusive right of traditional wisdom creation cannot be equated with fair use. It is incongruous to immediately apply fair use to two different objects of protection, private rights and public interest.
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