“Instagram Screenshot”
摘要
The right provided in Sec. 25(1)(2) of the Copyright Act may pertain to the reproduction and making available to the public of a copy of a photograph as referred to in Sec. 49a of the Copyright Act when reporting an event of the day, even when the photograph itself has not been seen during the events. In order to apply the press quotation right, the use of a photograph under Sec. 25(1)(2) of the Copyright Act requires that the photograph has been published and used in a newspaper or periodical. The photograph must not have been produced for reproduction in a newspaper or periodical. Moreover, the photograph must be used in the context of reporting an event of the day and must be related to the text. The use of the photograph is permissible only to the extent that it is justified for informatory purpose. Such use also requires the acknowledgment of the photographer and the source in accordance with Sec. 11(2) of the Copyright Act. The current event as referred to in Sec. 25(1)(2) of the Copyright Act should not be interpreted as meaning any event that the press deems the public wishes to know about. Instead, a current event must possess some credible objective information value to the public. Although in certain special circumstances the public’s right to be informed can even extend to aspects of the private life of public figures, particularly where politicians are concerned, this will not be the case, even where the persons concerned are quite well known to the public, where the published photos and accompanying commentaries relate exclusively to details of the person’s private life, and have the sole aim of satisfying the curiosity of a particular readership in that respect. In the latter case, freedom of expression calls for a narrower interpretation. Section 22 of the Copyright Act does not exclude any type of work from the scope of the right to quote. Furthermore, the provision has been explicitly extended to also cover photographs by referring to Sec. 49a of the Copyright Act. The applicability of the right to quote for the use of the photograph in question cannot be excluded solely on the grounds that the photograph has been used in its entirety. Using a work or photograph under the right to quote based on Sec. 22 of the Copyright Act requires that the work or photograph being quoted has been published. Furthermore, the quotation must be in accordance with fair practice, and it must not exceed the extent required by the specific purpose. The requirement of crediting the author and the source, as stipulated in Sec. 11(2) of the Copyright Act, also applies to the right to quote. Central to the quotation in accordance with Sec. 22 of the Copyright Act and its conformity with good practice has traditionally been viewed as involving what is known as the invocation function. A legitimate quotation should aid in intellectual creation; the right to quote is a necessary precondition for the development of opinions. In the case of artistic works, the use of the work must serve to clarify or illustrate the presentation. The substantive connection required for the press quotation right does not, in principle, on its own satisfy the invocation function of the general right to quote. Merely describing the content of the quoted photograph or acknowledging it as clever does not as such fulfil the requirement for a dialogue associated with the invocation function.