Chapter Editor: Lucien Cheng-hsia Lin¹⁾ 作者：林誠夏²⁾

電腦程式在台灣的保護，主要是以著作權法(Copyright Act)為其基礎法律(general law)，其並沒有獨立設立軟體保護的特別法(special law)規範，而是在著作權法中設置予電腦程式適用的專門條款³⁾來進行規範。

而在法律體系上，由於台灣採用的是民商合一制(Integration of Civil and Commercial Legislative System)，故涉及著作權保護及侵害時，相關的因應措施除了要參照著作權法的規定外，還必須引據民法⁴⁾的基礎原則來進行處理；除此之外，台灣的著作權法亦具特別刑法的性質，當著作權侵權行為被認定為惡性重大時，其處理方式亦有可能是透過檢察官提起公訴來進行制止，此外，電腦程式涉及大型商業化利用行為時，亦必須參照消費者保護法⁵⁾為著作權法的補充規定；而在程序法的範疇裡，台灣在著作權的爭議處理上，除了依智慧財產案件審理法⁶⁾及一般的民事⁷⁾、刑事訴訟⁸⁾程序進行適用外，另設有非強制性的著作權爭議調解機制(copyright dispute mediation procedure)，此一機制主要依循「著作權爭議調解辦法⁹⁾」來進行，質言之、著作權利爭議雙方得在司法訴訟之前合意選擇此一調解機制，以避免正式司法審判程序曠日費時，而調解結果經智慧財產法院(Intellectual Property Court)審核¹⁰⁾後，效力與民事確定判決同一，亦得據以為強制執行程序之執行名義。

Copyright protection of software in Taiwan is regulated under the general Copyright Act of 10 Feb. 2010. Instead of drafting the regulations specialized for computer programs, the legislature in Taiwan makes all the related norms and standards merged into the established provisions in Copyright Act¹¹⁾.

The civil and commercial legislative system in Taiwan is designed as one integrated infrastructue. This means when it comes to copyright protection and infringement issues, treatments and procedures should be taken under the principles of the Civil Code¹²⁾. However, some articles of Copyright Act are also deemed as special provisions to the general Criminal Code, that is to say, when a criminal prosecution of unlawful copyright infringement has been impleaded by a public prosecutor, it is the Criminal Code that should be put into reference along with the Copyright Act as well. Moreover, when the computer programs are involved in the commercial use, the Consumer Protection Law¹³⁾ is the principal supplementary regulations to the general laws. Except for the substantive law, when a copyright issue occurs in Taiwan, there is also an optional nature dispute mediation procedure could be chosen in the adjective law area, the details of this mediation mechanism are defined in the Regulations of Copyright Dispute Mediation¹⁴⁾, in brief, considering that the formal lawsuit abiding by the Intellectual Property Case Adjudication Act¹⁵⁾, Taiwan Code of Civil Procedure¹⁶⁾, and The Code of Criminal Procedure¹⁷⁾ might take litigants too much time and too many expenses on that, both parties in a copyright dispute event could choose this mediation procedure in consensus as an alternative solution. After a settlement of the mediation has been reached and ratified¹⁸⁾ by the Intellectual Property Court, the written mediation settlement statement shall have the same force as a final and unappealable court judgment and constitute a writ of execution by itself as well.

電腦程式在台灣主要是受到著作權法的保護，其明訂於著作權法第5條第1項第10款：「本法所稱著作，例示包括電腦程式著作。」但關於何種素質程度的電腦程式才是受到著作權法保護的程式，此一要點法無明文，能引據來探討的基本條款為著作權法第3條，關於著作之定義：「著作，指屬於文學、科學、藝術或其他學術範圍之創作。」依據此條，台灣多數的法律論理，認為電腦程式亦必須類同其他著作權法保護的客體一般，具有「創作性(originality: creation within an intellectual domain)」才能夠受到保護。而就台灣的一般司法實務來看，對於著作是否具有「創作性」並沒有深度的討論，但多數的法律評論與司法判決，認為辛勤原則(sweat of the brow)在著作權法的領域，不應被直接適用，而持純然勞務產出不應受到著作權法保護的觀點¹⁹⁾。

再參酌著作權法第10-1條的規定：「著作權保護僅及於該著作之表達，而不及於其所表達之思想、程序、製程、系統、操作方法、概念、原理、發現。」故一般來說，在台灣電腦程式要受到著作權法保護的門檻並不高，但首要：1、必須能夠證成該電腦程式寫作的過程並非機械化、純數理過程的推展與呈現；次要：2、此一電腦程式的創作過程仍具有創作人智慧的投入，則已足。

Computer programs are protected by copyrights as one special work in the intellectual domain similar to literary and artistic creation, this is declared in article 5, paragraph 1, subparagraph 10 of the Copyright Act as “Works means a creation within a intellectual domain and shall include Computer programs.” However, there aren't many details being told in the Copyright Act about scales of creativities for copyright qualified computer programs. The only one specific clause can be referred to is article 3, it shows as “Work protected by Copyright Act means a creation that is within a literary, scientific, artistic, or other intellectual domain.” Deduced from article 3, legal doctrine established that the originality is still needed to be seen for a computer program pursuing copyright protection, because of the originality is the very essence of creation in intellectual domain. However, how intensive the originality should be and by which method it could be measured is yet to be extensive interpreted. By now, analyzed on most rulings by the courts and most comments from the jurists, there is only one clear line has been drew on this topic, that is sweat of the brow doctrine should not be applied directly without proper elaboration in copyright area²⁰⁾, which means, pure labour service output without originalities should not be deemed as intellectual creation, although the threshold of originality for copyright protection is fairly low by the courts, it is still obliged to be found nevertheless.

Morover, as it says in article 10-1 of the Copyright Act: “Protection for copyrights that has been obtained in accordance with this Act shall only extend to the expression of the work in question, and shall not extend to the work's underlying ideas, procedures, production processes, systems, methods of operation, concepts, principles, or discoveries.” This principle applies to computer programs like the other copyright works as well. Generally speaking, two fundamental points should be sustained on computer programs for copyright protection, which are : (1) Producing process of the computer program doesn't only consist of merely registering or copying the reality or executing a functional routine. (2) The originality involved in the computer program is required to make it qualified as an own intellectual creation of the author, no matter how minority the originality is.

電腦程式的著作人依著作權法第11條與第12條的預設，無論是持續性的雇用關係，或是任務性的聘用關係，其著作人皆為實際動手撰寫程式的受雇人或受聘人；但在雇用關係裡，該程式的著作財產權預設歸於雇用人，而在聘用關係裡，程式的著作財產權預設歸於受聘人。然而，前述關於著作人與著作財產權歸屬的設定，當事人都可以透過預先的契約協議來自行調整，所以實際要判斷個別電腦程式與軟體專案的著作人與著作財產權歸屬，仍然要探討該聘雇契約的細部內容才能得到進一步的確認。附帶一提的是，著作權法第12條第3項特別律定：「當著作人與著作財產權皆依法律預設歸屬於受聘人享有者，出資人得利用該著作。」也就是說，此時出資人雖非該電腦程式著作之著作人及著作財產權人，但其仍然可以依聘用契約內容，或依照出資目的之合理解釋，來對該程式實施一定程度的經濟使用與收益行為。

Article 11 and 12 of the Copyright Act provide that the author of a computer program should be the one who actually does the design and writing of the program, whether the author is completing the work as an employee within the scope of a persistent employment or as a contractor under a task-based commission. In most cases the author refers to the software engineer of a computer program, if it does have freedom of development when creates the work. But for the economic rights to the work, they belong to the employer in a employment relation, and to the contractor in a task-based commission. However, either in the employment relation or in the commission cooperation, all the assignments of authorship attribution and economic right allocation could be prearranged by a contractual agreement between both parties. Namely, in order to find out and make confirmation about which party is the one that authorship should be attributed to or economic rights should be adhered to, details of the contract of employment or commission need to be fully revealed to that purpose. Additionally, according to article 12, paragraph 3 of the Copyright Act: “Where the economic rights are enjoyed by the commissioned person pursuant to the provisions of the preceding paragraph, the commissioning party may exploit the work.” That is to say, if there isn't any prearrangement in contract for authorship and economic rights between the opposite commission parties, then authorship and economic rights of the computer program would be appointed to the contractor as a default arrangement. However, the commissioning party does pay remuneration to the contractor for the work, to compensate its offering, this clause makes a supplementary explanation for its lawful exploitation status on the work, whether this privilege is recorded in writing or not, it applies to the commissioning party as well at law.

與電腦程式有關的專有著作財產權利，與著作權法保護的其他客體相同，皆被規定在著作權法的第22條至29條，包括：重製、公開口述、公開播送、公開上映、公開演出、公開傳輸、改作、編輯、以移轉所有權方式散布，以及出租著作之權利。但就現實利用狀況而言，並非所有前述的利用方式都可以套用在電腦程式上，但台灣著作權法就電腦程式的特殊性亦沒有特別去定義與區分，故電腦程式依著作權法可取得的專有權利，理論上只要是解釋上能夠符合前述權利在著作權法第1條所律定的字義範圍內，就可以據以主張。

The exclusive economic rights defined by the Copyright Act are listed from article 22 to 29, the whole package included is to (a) reproduce the work, (b) publicly recite the work, © publicly broadcast the work, (d) publicly present the work, (e) publicly perform the work, (f) transmit the work to the public, (g) publicly display the work, (h) adapt the work into derivative ones or (i) compile the work into compilation ones, (j) distribute the works through transfer of ownership, and (k) rent the work. Although all these rights are not fit in computer programs in theory and in essence, on account of computer programs are treated equal to other copyright works under the Copyright Act without specific difference, all the exclusive rights listed above could be covered in the software area, as long as it is applied in a realizable way.

除了依著作權法第44至66條的規定，著作的使用人在無授權基礎的狀況下得以主張對著作合理使用的抗辯之外，台灣著作權法對於著作權專有權利的通則除外規定是「權利耗盡原則(exhaustion theory)」，或稱「第一次銷售原則(first sale doctrine)」之適用，此項原則規定於著作權法第59-1：「在中華民國管轄區域內取得著作原件或其合法重製物所有權之人，得以移轉所有權之方式散布之。」此條的適用對象包括受著作權保護的各項客體，電腦程式亦屬之，故電腦程式只要附著於實體媒介上，其合法取得電腦程式原件或合法重製物所有權之人，便得以移轉所有權的方式對其進行散布，不必再經過電腦程式著作財產權人之同意或授權。但此一法則的適用範圍僅限於台灣這個司法管轄領域，係為「國內耗盡」的作法。

其他專屬於電腦程式專有權利的除外規定，則規定在著作權法的第59條與第60條。59條規定：「合法電腦程式著作重製物之所有人得因配合其所使用機器之需要，修改其程式，或因備用存檔之需要重製其程式。」此條規定是對原著作財產權人在改作與重製專有權上之例外；69條規定：「附含於貨物、機器或設備之電腦程式著作重製物，著作原件或其合法著作重製物之所有人，得出租該原件或重製物。」此條規定是對原著作權利人在出租專有權上之例外。

Except making a legal plea and excuse by asserting the fair use doctrine based on article 44 to 66 as limitations to exclusive rights, there is only one general exception applied in the Taiwan Copyright Act, which is the first sale doctrine under the jurisdiction of Taiwan. It is expressly provided by article 59-1 of the Copyright Act: “A person who has obtained ownership of the original of a work or a lawful copy thereof within the territory under the jurisdiction of the Republic of China may distribute it by means of transfer of ownership.” All the copyright works apply to this provision, as well as computer programs. Hence, when a computer program was attached to a storage medium, or physical product, machine, and similar equipment, then be lawfully transferred to others with the rightholder's consent, this transaction shall exhaust the distribution right of that copy of computer program within the territory under the jurisdiction of Taiwan, with the exception of the right to control further rental of the program if it is incorporated to a physical product, machine, and equipment rather than a simple storage medium, according to article 60, paragraph 2 in the same Act.

The other exceptions specific for computer programs are set forth in article 59 of the Copyright Act: “(1) The owner of a legal copy of a computer program may alter the program where necessary for utilization on a machine used by such owner, or may reproduce the program as necessary for backup; provided, this is limited to the owner's personal use. (2) If the owner referred to in the preceding paragraph loses ownership of the original copy for any reason other than the destruction or loss of the copy, all altered and backup copies shall be destroyed unless the economic rights holder grants its consent otherwise.” Article 59 cited above is deemed as compulsory law. Therefore, contractual agreements in conflict with that are held to be nonexistence.

著作人格權在台灣被高度保護，著作權法第21條規定：「著作人格權專屬於著作人本身，不得讓與或繼承。」第18條規定：「著作人死亡或消滅者，關於其著作人格權之保護，視同生存或存續。」所以說，著作人格權在台灣被定義為一身專屬權，在確認著作人為何之後就不會再發生後續的變更或流動，但對此權利之保護，亦不會隨著作人死亡而完全消失。至於著作人格權能不能被拋棄，通說的看法是依照民法第16條的規定，一身專屬性質的權利能力不得被拋棄，但可以在特定的人事物狀況下預先約定不去行使²¹⁾。

從內容上分析，台灣著作權法保障的著作人格權可以大分為三個部份：

1. 公開發表權：著作人就其著作享有公開發表之權利。此規定於著作權法第15條。
2. 姓名表示權：著作人於著作之原件或其重製物上或於著作公開發表時，有表示其本名、別名或不具名之權利。著作人就其著作所生之衍生著作，亦有相同之權利。此規定於著作權法第16條。
3. 禁止不當修改權：著作人享有禁止他人以歪曲、割裂、竄改或其他方法改變其著作之內容、形式或名目致損害其名譽之權利。此規定於著作權法第17條。

Moral rights are highly valued by the Copyright Act in Taiwan and applied to computer programs if realizable in essence like the other copyright works as well. Expressed in article 21 and 18 of the Copyright Act, moral rights belong exclusively to the author and shall not be transferred or succeeded, moreover, the protection of moral rights of an author who has died or been extinguished shall be deemed to be the same as when the author was living or in existence and shall not be infringed upon by any person.

In other words, moral rights are deemed as the “specificly exclusive rights without transferability” in Taiwan, that is to say, when the authorship attribution of a copyright work has been made, moral rights adhered to that authorship shall not be changed or transferred to other person or legal entity by any means, and remain in force after the transfer of the proprietary rights and following the death of the author for evermore.

According to article 16 of the Civil Code, moral rights are generally considered to be an essential legal capacity, and declared to be not permitted to waive in Taiwan. Although they are treated as inalienable rights, this does not mean that it is impossible for rightholder to renounce under certain circumstances. From the standpoints explained in official documents issued by the Ministry of the Interior in Taiwan²²⁾, global renouncement of the future exercise of moral rights should be void, however, if the renouncement of the scope could be stipulated with well-defined boundaries, such as subject, duration, and applied area being prearranged for the renouncement, in that case, the renouncement of moral rights could be validly sustained at law due to the respect for “Principle of Freedom of Contract”.

Analysis on the content, moral rights protected by the Copyright Act consist of three parts, which are:

1. Right of publicly release: The author of a work shall enjoy the right to publicly release the work, provided by article 15 of the Copyright Act.
2. Right of paternity: The author of a work shall have the right to indicate its name, a pseudonym, or no name on the original or copies of the work, or when the work is publicly released. The author has the same right to a derivative work based on its work. Provided by article 16 of the Copyright Act.
3. Right of integrity: The author has the right to prohibit others from distorting, mutilating, modifying, or otherwise changing the content, form, or name of the work, thereby damaging the author's reputation. Provided by article 17 of the Copyright Act.

在著作人格權方面，依著作權法第18條其保護在著作人死亡或消滅後，仍視同生存或存續，故基本上著作人格權沒有保護期間的限制，然而在著作人死後，相關利用行為之性質及程度，依社會變動或其他情事被判定不違反著作人之意思者，則從寬認定不構成著作人格權之侵害；而在著作財產權方面，電腦程式的保護類同其他的著作權保護客體一般，故依著作權法第30條及35條，存續於著作人生存期間及其死亡後第50年的12月31日，而若此電腦程式的著作財產權歸屬於法人，則依著作權法第33條及35條，存續至此電腦程式公開發表後第50年的12月31日止。

For economic rights of computer programs, the same terms as for works of literature, science, and art applies: 50 years as of December 31 following the death of the author, and if the economic rights in work are appointed to a legal entity, the 50 years duration should be counting from the day that work is publicly released. In case of co-authors, economic rights in a joint work subsist for 50 years after the death of the last surviving author. More details about the duration of economic rights could be provided in article 30, 31, 33, and 35 of the Copyright Act.

However, there is no limited term of protection for moral rights of copyright works, as well as computer programs. This is clearly declared in article 18 of the Copyright Act, however, in the later part of the same article also emphasizes that: “After the death of the author, an act shall not constitute an infringement where it can be considered that the author's intent has not been contravened given the nature and degree of the act of exploitation, social changes, or other circumstances.” Hence, moral rights of copyrights shall not perish after the death of the author, but it would be applied in a more moderated and compromised way to some extent.

如前所述，依著作權法第11條與第12條，在特續性的雇用或任務性的聘用關係裡，當事人可以透過預先的契約協議，來自訂著作人與著作財產權利的歸屬，而若沒有透過契約來預先約定，則電腦程式以其實際智慧產出與投入的撰寫者為著作人，而著作財產權利，則在雇用關係裡歸於雇用人，而在聘用關係裡歸於受聘人。當著作人確立之後，依著作權法第21條，此一著作人格權專屬於著作人本身，不得讓與或繼承。但就著作財產權來說，其依著作權法第36條的相關規定，著作財產權利人得嗣後，將著作財產全部或部份讓與他人或與他人共有。

台灣著作權法對於著作權利讓與的處理作法，可說相當的寬鬆與富有彈性，並沒有要求任何法律上的要式行為，甚至沒有要求讓與契約必須以書面為之，而可以依讓與和受讓雙方當事人自訂的程序來進行。不過，著作權法第36條第3項也述明：「著作財產權讓與之範圍依當事人之約定；其約定不明之部分，推定為未讓與。」故雖然法律上並沒有要求著作財產權的讓與必須要以書面為之，但一般進行時的慣例，還是會以書面契約的訂立為基本模式，或是兼採其他足以佐證讓與範圍細節的紀錄方式。

As mentioned previously about the default setting by article 11 and 12 of the Copyright Act, the authorship of a computer program is attributed to whom actually does the design and writing of it, and the economic rights are allocated to the employer in a persistent employment relation and to the contractor in a task-based commission. Nevertheless, all the assignments above could be transposed on a preconcerted contractual agreement. When the authorship and economic rights have been attributed and allocated at law or by a contractual agreement, moral rights are adhered to the authorship and can not be succeeded or transferred thereafter. However, there is no such restrictions imposed on economic rights, according to article 36 of the Copyright Act: “Economic rights may be transferred in whole or in part to another person and may be joint owned with other persons.”

Roughly speaking, economic rights of copyrights assignment procedure in Taiwan could be made in a very flexible and customized way, some people might even think about that it is under a loose control at law. Because there are actually no any legal formalities required for an economic right assignment in Taiwan, none of them are asked by the Copyright Act and Civil Code. Although, according to article 116 of the Civil Code and article 4 of the Electronic Signatures Act, both parties in a economic right assignment agreement can still stipulate certain formalities by themselves, even the formalities are provided in an electronic record way could be served properly. However, if the parties did not arrange any definite form for the economic right assignment, the agreement will still be valid, even if it is agreed between the parties as a consensual contract. Even so, article 36, paragraph 3 of the Copyright Act expresses that: “The scope of the transfer of the economic rights shall be as stipulated by the parties; rights not clearly covered by such stipulations shall be presumed to have not been transferred.” In terms of that, although the economic right assignment could be made valid on the condition of a consensual contract, however, to clearly record the details of the stipulations, people will still tend to make the agreement on a written document or through a similar method like that to preserve the related informations as many as possible.

台灣的著作權法具有特別刑法(special law to Criminal Code)的性質，當權利人向司法警察機構提出著作權利遭受侵害的告訴，而經承辦檢察官認定該侵權行為惡性重大時，檢察官即可以依著作權法第91條至100條的規定提起刑事訴訟，判決確定後的刑事罰責，最高可處6月以上5年以下的有期徒刑，依狀況得併科新臺幣500萬元以下的罰金，而倘若犯罪所得利益超過罰金最多額時，亦可援引著作權法96-2條之規定，於其所得利益之範圍內酌量加重罰金的數額。此外，司法警察官或司法警察依著作權法第103條，對侵害他人之著作權之行為，經告訴、告發者，亦得依法扣押這些涉及侵權利用之侵害物。

除此之外，台灣的著作權法還設有非強制性、補充性質的著作權審議及調解程序(copyright dispute mediation)，凡涉及著作權或製版權之爭議，當事人得依「著作權爭議調解辦法(Regulations of Copyright Dispute Mediation)」之規定申請著作權專責機關協助調解，如調解成立，並經智慧財產法院(Intellectual Property Court)審核，認調解內容沒有違反法令、公序良俗或不能強制執行的狀況，則此調解書具有與司法確定判決同一之效力，並可於強制執行程序中據以為正式的執行名義。

Some articles of Copyright Act are deemed as special provisions to the general Criminal Code, those provisions are applied to computer programs like the other copyright works as well. In that case, when a legal complaint about copyright infringements has been submitted by the rightholder to the authority, and has been evaluated to be an intentional offence by the public prosecutor, the public prosecutor who undertakes this issue can therefore initiate the prosecution based on article 91 to 100 of the Copyright Act, in order to place the proper criminal responsibilities on the infringer involved. The criminal punishment for copyright infringements varies with different accusations being charged. For a overall but not precise description, the most serious punishment could be imposed would be imprisonment for not more than 5 years, detention, or in lieu thereof or in addition thereto a fine not more than 5 million New Taiwan Dollars. However, if the benefit obtained by the infringer exceeds the maximum fine, article 96-2 of the Copyright Act hereon could be applied by court to increase the fine limitation to the obtained benefit. Besides that, according to article 103 of the Copyright Act: Upon complaint or information of an infringement of a person's copyrights, judicial police officials or judicial police may seize the infringing works to cease the ongoing unlawful infringements.

Except for the substantive law, when it comes to disputes concerning copyrights or plate rights, there is also one special measure could be taken in the adjective law area, which is the optional conciliation process regulated by the Regulations of Copyright Dispute Mediation in Taiwan. Both parties in a copyright dispute event could choose this mediation procedure in consensus as an alternative solution to the normal litigation procedure. After a settlement of the mediation has been reached and ratified as not contrary to act, regulation, public order, good morals, and compulsory executabilities by the Intellectual Property Court, the written mediation settlement statement shall have the same force as a final and unappealable court judgment and constitute a writ of execution by itself as well.

如前所述，在台灣電腦程式具著作權法保護適格的二大要素為：1、必須能夠證成該電腦程式寫作的過程並非機械化、純數理過程的推展與呈現；2、此一電腦程式的創作過程具有創作人智慧的投入，若這二項標準皆符合，則該電腦程式便可以受到著作權法的保護。而實務上要達到上述創作性的保護門檻並不高，故絕大多數的電腦程式創作，都是受到著作權保護的。

而依著作權法第42與43條規定：「著作財產權因存續期間而消滅，著作財產權消滅之著作，任何人均得自由利用。」而若著作財產人死亡，其著作財產權依法無人繼承而歸於國庫，著作財產人為法人，法人消滅後其著作財產權依法無人繼受而歸於地方自治團體者，其後狀況亦等同消滅，而不再受到保護。此一著作財產權消滅後「任何人均得自由利用」的狀態，在法條內容裡並沒有直接指稱其便是歸於「公眾領域(Public Domain)」，但台灣的法律通說，多直接指此任何人均得自由利用的狀態即為公眾領域。所以依此條款，電腦程式可因存續期間屆至，或是其著作財產權利人死亡、消滅無人繼受權利後，歸於公眾領域而不再受到法律保護。

然而，進一步需要被討論的是，在台灣電腦程式的著作財產權利人，能不能主動在存續期間屆至前，便主動拋棄其所享有的著作財產權利保護？此一狀況著作權法並沒有直接明文規定，但多數論者認為依著作權法第40條第2項之規定：「共同著作之著作人拋棄其應有部分者，其應有部分由其他共同著作人依其應有部分之比例分享之。」所以在共同著作係為一電腦程式的狀況，著作人是可以就其著作財產權利應有部份來主動進行拋棄，而拋棄的結果是該應有部份歸於其他共有人比例分享。但如果依此條款，全部的共同著作人皆拋棄其著作財產權之應有部份，那麼該電腦程式的相關著作財產權利，將達到著作權法第42條所定無人繼受歸於消滅的狀況。從這個立場來解釋，在台灣電腦程式的著作財產權應僅具單純「私權」的性質，而可以被著作財產權利人在存續期間屆至前，主動的拋棄使其進入公眾領域。

As set forth above, two fundamental criteria should be met on computer programs for the copyright protection, which are : (1) Producing process of the computer program doesn't only consist of merely registering or copying the reality or executing a functional routine. (2) The originality involved in the computer program is required to make it qualified as an own intellectual creation of the author, no matter how minority the originality is. As a matter of fact, the threshold of originality for copyright protection is fairly low by standard, therefore most of the computer programs shall be protected by copyrights, no matter whether it is made in a proprietary software mode or under a Free and Open Source Software (hereinafter abbreviated as the “FOSS”) license.

Opposite to the computer programs with copyright protection, there are also softwares which are not protected under certain circumstances described in article 42 and 43 of the Copyright Act. Briefly speaking, economic rights of computer programs are extinguished upon expiration of the term of protection, this kind of extinguishment applies to the situation that economic rights holder has died or been extinguished without any inheritors other than the natiton or a local government as well. After the extinguishment, any person may freely exploit the computer programs without any legal restrictions. In fact, the common used word “Public Domain” or its synonyms are not declared in the Copyright Act of Taiwan, however, most legal critics agree that the sentence used in article 43 as “Any person may freely exploit a work for which the economic rights have been extinguished” is a very much equivalent expression to the same thing.

Even so, there is still one thing needed to be further discussed and made the confirmation, which is whether the economic rights of copyrights can be abandoned by their rightholders in advance to make the work into the area of Public Domain earlier or not. This question has not been answered in full by the Copyright Act directly, however, in legal theory, the property rights are always not be categoried as the “specificly exclusive rights without transferability” defined in the article 16 of Civil Code, moreover, according to article 40, paragraph 2 of the Copyright Act, an author of a joint work is expressly allowed at law to abandon its share of the ownership to other co-authors of the work. Therefore, if we apply this clause mutatis mutandis to article 42 of the Copyright Act, the deduction we shall find is that when all the authors have abandoned their economic rights in a joint work, the work shall hence be allocated into the Public Domain. Based on this very standpoint, an author makes a work by its own can theoretically abandon the economic rights of that in the same way. Namely, economic rights of computer programs shall be allowed to be abandoned by the rightholders before expiration of the term of protection, in other words, the abandoning statements made by the rightholders will render computer programs as unprotected softwares, and therefore into the Public Domain area as well.

依據著作權法第10條規定：「著作人於著作完成時享有著作權。」此之所謂創作保護主義，意指著作權保護的客體，於著作完成時自動取得著作權法上的保護適格，其著作人毋須透過任何額外程序的登記或是申請來取得著作權利。從這個觀點出發，一個電腦程式只要是著作人的智慧結晶，便自動可以取得著作權法下的保護適格，無論這個電腦程式是以自由開源軟體的授權方式，亦或是採私有軟體的授權方式進行後續的應用。

在英美法系裡時常會以「單務授權條款(bare license)」或是「雙務授權契約(bilateral contract)」的適用差異，來討論自由開源軟體授權方式的法律分析。然而，此一分析模式雖在英美法系國家確有其重要性，但在台灣現行的法律架構下實用性不大，因為按照台灣的民法學說，雖亦有單獨行為(unilateral act)、雙方行為(bilateral act)、單務契約(unilateral contract)，與雙務契約(bilateral contract)差異性的探討。然而單獨行為在台灣法制裡，就實體法與訴訟法上皆無相關的重要配套，而電腦程式的授權利用行為上，法律實務上更幾乎皆是以締約雙方當事人互負權利義務關係的契約行為來視之，故以下就自由開源軟體於台灣法制下的分析，將以著作權法相關規定搭配民法契約行為的模式來進行，首先就著作權法的基礎規定來定義自由開源軟體程式的著作類型，再探討透過契約內容的調整，其在台灣法制下可有哪些被擴充解釋的空間。

Provided by article 10 of the Copyright Act, an author of a work shall enjoy copyrights upon completion of the work. That means when a copyright creation is completed, the author doesn't have to apply for extra registration or process, because with the essential originality the work will be subjected to copyright protection automatically. This is so-called “self-executing protection principle on copyrights”. From this standpoint, computer programs with certain originalites should be protected by copyrights automatically, whether they are accomplished by a single author or by multiple authors cooperating under the FOSS licensing architecture.

When it comes to FOSS license analysis in the common law system, discussion upon differences between “bare license” to “bilateral contract” will always be likely to be invoked. This analysis template might be something of importance under the applicable common law, however, it doesn't seem to bring out much practical influence on the law system in Taiwan. As a matter of fact, there are still some legal theory discussions about the differences between unilateral act, bilateral act, unilateral contract, and bilateral contract for the juridical acts, but most of those discussions remain as academic subjects. Judging from the fact that in Taiwan “bare license” is lacking of corresponding mechanisms either in substantive law or in adjective law, and in reality most courts always treat the computer programs utilization agreement as a copyright contract, hereunder when it comes to analysis of FOSS, the FOSS licenses themselves will be treated as contracts and the licensing modes based on that will be reviewed from the fundamental copyright regulations to supplementary contract stipulations. In a nutshell, the FOSS licenses deviate a lot from conventional license agreements that under the law in Taiwan, they should be considered as the sui generis license agreements based on the same fundamental copyright mechanisms but adjusted to some extent by contractual agreements for matching a new collaborative development methodology.

自由開源軟體專案對於當前著作權法的挑戰在於，其為一個多人共工、聚沙成塔，且不斷吸納參與者智慧貢獻的著作權客體，這和當前既定著作權法對於電腦程式創作所想像的預設過程有著相當大的落差。一般來說，現行台灣著作權法對於著作類型的分類，規定於著作權法第8條的共同著作(joint work)，與規定於著作權法第6條的衍生著作(derivative work)，這二個著作型態最有可能被拿來，比附援引自由開源軟體專案就一個著作客體來看的權利分配狀態，然而其與自由開源軟體的實際開發狀態，在對比上亦各有各自的欠缺與不同。

就共同著作而言，其與自由開源軟體多人共工這點特性是相符合的，然而傳統上對於共同著作的解釋，旬認為共同著作人之間，對於共同著作應具有共同創作意思之溝通與聯繫，此一認知和多數自由開源軟體專案的運作狀態不盡相符，一般而言，許多的自由開源軟體專案參與者，僅依循授權規則與開發風格(coding style)，便以程式碼撰寫接力的方式來共同完成一個電腦程式，這是一種「未必經過溝通協調的合作模式(cooperation without coordination²³⁾)」，此點與現行著作權法對於共同著作的定義並不完全相同。

而再論以衍生著作，其與自由開源軟體乃不斷修改前手專案以衍生出更優質或更富功能性電腦程式的特性是相合的，然而傳統上對於衍生著作的解釋，亦要求衍生程式與原生程式之間必須要有相當創意性的改作，方才能夠成為一個具獨立著作權保護地位的衍生著作，此一標準和多數自由開源軟體專案的持續開發歷程或有相當落差，因為在相當期間裡，許多的自由開源軟體專案參與者，是就原生程式漏洞進行修補與小功能的改寫，這些微量的程式碼貢獻單筆單筆區分來看，其創意性皆不足以獨自成為著作權保護的客體，但經歷一段時間與數量的累積後，卻可能統合為一個更新版本的電腦程式專案，這是一種透過眾人持續貢獻累積程式碼所造成的改作模式，此點與現行著作權法對於衍生著作的定義亦不完全相同。

所以大體來說，就台灣著作權法的現行規定，依自由開源軟體專案在開發期程上的歷程與階段，將其類推為共同著作或原生專案的衍生著作來看，在法律架構上並不會產生本質上的衝突，然而，現行著作權法對著作物型態的預設分類，並不能完全切合自由開源軟體專案的運作特性，所以實務上必須輔以授權條款個別內容的解釋，與著作權法相關條款的類推適用(mutatis mutandis)，才能運作順暢。

One very essential of a FOSS project is that it is made with multiple authors day by day with or without coordination, on account of that, to well apply the current copyright regulations onto it could be a very challenging task because of the cooperation methodologies operated in FOSS project might not be foreseeing and taking into consideration when the copyright regulations was enacted by the legislators. Generally speaking, provided by the Copyright Act in Taiwan a FOSS project could be deemed to be a joint work in the article 8 or a derivative work in the article 6, depends on which one fits the real situation most for the FOSS project. However, neither the joint work type nor the derivative work type could fit in hundred percentage to what a FOSS project really is.

Take the joint work for example, the feature for cooperation between multiple authors is equally found in a conventional joint computer program and a FOSS project. However, most people think that it is necessary that a joint work should be made by co-authors in consultation, in other words, there must be certain interaction and communication among the co-authors for the composition of a joint creation. Judging from that, quite a number of FOSS projects actually do not have anything to do with this prerequisite. In fact, many participants of a FOSS project might just take part in the code committing merely under the same coding style and licensing rules without knowing each other. This is so-called “Cooperation without Coordination²⁴⁾” mechanism of the FOSS projects. From this point of view, the type of joint work defined by the current Copyright Act can't not cover all the well-known features of a FOSS project.

Then take the derivative work into consideration, the feature for continuing modifications to the original work is identically proved in a conventional derivative computer program and a FOSS project. However, most people think that it is fundamentally required that a derivative work should be made with certain originalities to some extent, that is, there must be quite a bit creativities compared from the original work to the derivative one for a ratification. Rethinking on this, quite a number of FOSS projects actually do not make modifications by that standard. As a matter of fact, many contributions committed to a FOSS project might just be taken as a bug fix or merely a patch being made of scripts without copyright protection on it. However, accumulated by all these little by little and piece by piece, many a little contribution might eventually make a derivative improvement meaningful in copyrights. From this point of view, the type of derivative work defined by the current Copyright Act can't not explain all the details well about when is the proper counting point that a dervative work to an original FOSS project has been made.

So that, roughly speaking, take the FOSS project into application, depending on its development process and phase, as a joint work or a derivative work under the Copyright Act in Taiwan could be doable without conflicts with legal regulations in essence, in fact, some FOSS projects are collaboratively or derivatively accomplished exactly in this way. Even so, either the copyright type of the joint work or the derivative work can not express sufficiently on the features of a FOSS project in operation. Be on a eclectically thinking about this, for a FOSS project copyright application in Taiwan, it can be deemed to be a joint work or a derivative work of the Copyright Act in the first place based on its development situation, secondly shall be the follow up in accordance with its supplementary stiuplations under the respective FOSS licenses. This might be a much more rational and workable way for a overall copyright protection on FOSS projects for the time being.

電腦程式如為人類創意之產物，本應受到著作權法之保護，此被揭櫫於台灣著作權法第5條第1項第10款。而就現行著作權法的預設著作型態，多人同時同期分工創作且不可分別利用者，其成品可被歸類為共同著作(joint work)，而若多人前後不同時期接力創作，其後的修改作品可被歸類為衍生著作(derivative work)。然而，共同著作要求在創作歷程中參與者必須有創意共享之聯繫，此點與許多自由開源軟體專案的實際開發狀態未必完全相符，而衍生著作原始意涵為就原作另為創作，但多數自由開源軟體專案釋出新版本時，仍會高比例承繼前手專案未經修改的程式碼，故解釋上亦有其與衍生著作不完全相合的模糊地帶。

所以實務應用上，應先查驗特定自由開源軟體專案在運作上的狀態，若是該專案的參與成員彼此在撰寫分工上具有高度合意與互動，則可依民法第1條類推適用的法理²⁵⁾，優先讓其比附援引共同著作的相關規定，而若該專案為其他自由開源軟體專案的後續版本，則可優先讓其類推適用於衍生著作的相關規定，進一步在授權應用的細節上，再佐以自由開源軟體授權條款所律定的補充規則，來適當補充現行法律在著作型態界定上的不足。

As mentioned above, with the essential originality the computer programs will be subjected to copyright protection automatically, this is clearly stated in the article 5, paragraph 1, subparagraph 10 and article 10 of the Copyright Act in Taiwan. Referring to current copyright types of the Copyright Act, an indivisible computer program made by multiple participants concurringly in the same period of time could be categorized as a joint work, and an modified computer program qualified with originalities made by multiple participants separatively in different period of time could be categorized as a derivative work. However, most people think that it is necessary that a joint work should be made by co-authors in consultation, and a derivative work should be made with certain originalities to some extent. With regard to this two criteria, some FOSS projects might not be able to pass the evaluation in full.

In that case, according to article 1 of the Civil Code²⁶⁾, one can always apply the related provisions mutatis mutandis for a better resolution in the civil law area. That is to say, if a FOSS project fulfills the whole legal requirements as to the joint work or to the derivative work of the Copyright Act, then it shall be protected as its respectively proper copyright type. However, there might be some features of the FOSS project can not be well expressed and put into practice only by the statutory provisions. Here is where the contractual stipulations should be stepped in. Because only with the complementary circulation between the Copyright Act and specific FOSS licensing agreement, should the FOSS licensing mode be able to operate smoothly as it sets to be.

依著作權法第8條規定：「二人以上共同完成之著作，其各人之創作，不能分離利用者，為共同著作。」所以原生的自由開源軟體專案，創作人彼此間若具有充份共同創作意思的聯繫與互動，則該專案便會被認定為共同著作，而能夠適用共同著作在著作權法裡，預先設定的各項機制。大體來說，當一個電腦程式被認定為共同著作時，其著作人格權與財產權，都是處於共有的狀態，人格權的共有分配規定於著作權法第19條，財產權的共有分配規定在第40條與第40-1條的地方。簡言之，在人格權與財產權的共有關係中，皆律定非經共有權利人全體同意，不得行使這些人格權與財產權，但各權利人無正當理由者，不得拒絕同意；人格權與財產權的共有人，亦可於共有權利人之中選定代表人來行使相關權利；而以著作人格權共有關係與著作財產權共有關係相較，有一不同點就是著作權法第40條規定：「共同著作財產權之應有部份，依著作財產權人間之約定定之；無約定者，依各著作人參與創作之程度定之。各著作人參與創作之程度不明時，推定為均等。」此一著作財產權的分配設定，並沒有出現在著作人格權的共有關係裡，而考究著作人格權的內容為公開發表權、姓名表示權，以禁止不當修改權，這些人格權利均不具能被量化分配比例的特性，故一般認為在著作權的共有關係裡，僅著作財產權具有比例分配的問題，著作人格權在共有關係裡則是每個著作人均受等值尊重。

雖然著作共有關係裡，共有人欲行使著作人格權及著作財產權，皆須經共有人全體同意，然而若是發生著作權利侵害時，共有關係裡的各權利人是容許以自己名義來請求法律救濟的，這規定在著作權法第90條：「共同著作之各著作權人，對於侵害其著作權者，得各依本章之規定，請求救濟，並得按其應有部分，請求損害賠償。」

Provided in article 8 of the Copyright Act: “A joint work is a work that has been completed by two or more persons where the creation of each person cannot be separately exploited.” According to that, a computer program can be estimated as a joint work when it is made by multiple authors with certain interaction and communication for the cooperation among them, and can therefore apply all the related provisions about the joint work of the Copyright Act for its utilization. By and large, when a computer program is deemed to be a joint work, the moral rights and economic rights upon it shall be owned and utilized in a sharing status. The details to moral rights utilization is provided in article 19 of the Copyright Act, and the explanation of economic rights exploitation is regulated in article 40 and 40-1 of the same act. To be brief, in a sharing status of joint moral rights and joint economic rights on copyrights, all the rights in a computer program shall not be exercised except with the consent of all the joint rights holders, however, any one of the joint rights holders shall not be allowed to refuse this very consent without a legitimate reason. In addition, the joint rights holders of a computer program may select a representative from among themselves to exercise their joint rights, either in the moral rights or in the economic rights aspect. However, there is still one crucial difference can be told between the joint moral rights and the joint economic rights. That is in article 40, paragraph 1 of the Copyright Act, it is expressly stated that there is certain sharing proportion mechanism defined for the joint economic rights. Such as: “In the case of a joint work, each author's share of the ownership of such a work shall be as stipulated by the joint authors; where no stipulation has been made, ownership shares shall be determined according to the degree of each author's creative contribution. Where the degree of each author's creative contribution is not clear, it shall be presumed that each author owns an equal share.” However, this kind of sharing proportion mechanism is generally believed to be nonexistence in the joint moral rights area. Because of the moral rights are consisting of right of publicly release, right of paternity, and right of integrity, none of these three rights can be transferred from the owner to others, or be splitted in part as well. On account of that, most people agree that the sharing proportion mechanism only works for the joint economic rights, as for the joint moral rights, each co-authors should be treated equally and equitably in pari causa.

Although the joint rights of copyrights can only be exercised except with the consent of all the joint rights holders, there is still one exception provided in article 90 of the Copyright Act, that is, each holder of copyrights in a joint work may separately institute legal proceedings for an infringement of copyrights and demand remedies from the infringer, either acting as a moral rights holder or based on its share of economic rights ownership.

自由開源軟體專案經過一定程度的增補與改作之後，將形成著作權法第6條所定義之衍生著作，並依法得以獨立著作之地位保護之。依著作權法第28條規定，著作的改作權專有於原著作的著作財產權人，然而只要是自由開源軟體專案，其皆透過授權條款的設計，將原專案的改作權授權予後續專案的改作者，所以在自由開源軟體的開發歷程裡，後續專案被認定為前手專案的衍生著作，此一模式可說高度符合著作權法在衍生關係上建立的法律架構。並且，著作權法第6條述明衍生著作在法律上視為一新設之獨立著作，原生專案的著作人格權利人，僅能援引著作權法第16條的規定，在衍生著作公開發表時，行使表示其本名、別名或不具名之權利。在此之外，該衍生著作的其他權利行使，悉依衍生著作權利人之規劃；然而，有時候自由開源軟體專案的後續更新版本，僅是原封不動取用前一版本中部份的元件，例如函式庫性質的電腦程式，並透過公開的應用程式介面(application program interface, API)來和這些元件互動，此一對原元件的取用行為，能不能構成著作權法上的改作行為，則是迭有許多不同的法律見解，有些論者將這樣的利用狀態定義為結合著作(Compound Work)，或是編輯著作(Compilation Work)，而基於台灣著作權法並沒有如同德國著作權法有明定結合著作的型態，故此種狀況在台灣司法實務上，僅有被認定為編輯著作型態的機會，而再依編輯著作的規定進行利用。而如果此一原元件的取用行為，在實務上真的被認定為編輯著作而非衍生著作時，其與衍生著作最大的不同點在於，雖編輯著作亦為一具獨立保護地位的著作，但內含原元件的著作權利並沒有在編輯的型態中為編輯著作完全吸納，故欲對編輯著作中每一個具獨立性的元件進行後續改作，解釋上仍然需要依各獨立元件原本的授權規則來運作。

除了上述著作權法的預設之外，具有著佐權(Copyleft)特性的自由開源軟體專案，亦會透過契約條款補充的方式，進一步限制衍生著作在散布時的授權模式選項，此一著佐權模式的有效性，將在下列「著佐權機制」的區塊進行探討。

Regulated in article 6 of the Copyright Act: “A creation adapted from one or more pre-existing works is a derivative work and shall be protected as an independent work.” According to that, a computer program can be judged as a derivative work when it is made by the modifier with certain creativities compared to the pre-existing one, and can hence apply all the related provisions about the derivative work of the Copyright Act for its exploitation. According to article 28 of the Copyright Act, the authors of the pre-existing/original computer programs have the exclusive right to adapt their works into derivative works or to compile their works into compilation works, this prerequisite is fairly fulfilled by the FOSS licensing agreements. Because all the FOSS licenses are clearly stated that under them the rights to modify, copy, and distribute copies of the FOSS projects will be granted to the recipients. Moveover, the derivative work will be protected as an independent one as article 6 of the Copyright Act provides, that is to say, when the derivative work has been made lawfully, the only right the original authors can perform is to to indicate its name, a pseudonym, or no name on the derivative copies when they are publicly released. However, sometimes the latter version of a FOSS project is just taking an unmodified adoption from the pre-existing project, such as library components for example, and adding some new independent functionalities to interact with the adoption part through a predefined application program interface. Such an adoption should be deemed to be a derivative work, compound work, or even compilation work is arousing some discussion in Taiwan, but no solid conclusion has been reached so far. Judging from the fact that in Taiwan there is actually no copyright type defined as compound work like German law does, the adoption mentioned above can therefore be deemed to be a compilation work at most, and if it does be categorized as a compilation one, it will still be protected as an independent work according to article 7, paragraph 1 of the Copyright Act. Even so, there is still certain difference between a derivative FOSS project and a compilation FOSS project, which is the copyrights included are basically commingled into a derivative work, yet not to a compilation one. In that case, if the recipients want to do the modification directly to a specific FOSS component inside the compilation, it should still be proceeded under the rules stipulated by the respective license agreement of the component in question.

Except for the name indicating right has been expressly reserved for the original authors at law, sometimes the original authors will also impose some other contractual obligations by the FOSS license agreements. Later, in the “Copyright principle” section of this chapter, the related informations about the validity and enforcement of those impositions will be presented.

有時候為了讓自由開源軟體專案的著作權利能得到較高程度的掌握與運用，部份著作人會透過權利轉讓或是權利信託的方式，將相關著作權利的處分權，移轉到特定的法人機構或是基金會上。如此一來，該機構將有專職的人員照看相關事務，並且也可以適時的為這些著作人代為主張或執行其所擁有的著作權利。此一機制在台灣現行的法律制度而言是相當可行的，因依著作權法第21條與第36條，除著作人格權專屬於著作人本身，不得讓與之外，一般的著作財產權是可以全部或部份讓與他人，只要清楚約定讓與的範圍即可。此外，依照信託法第1條及第2條²⁷⁾，具可移轉性之財產權於法能夠透過契約行為付予信託，而進一步來說，這些著作權的讓與、處分，與信託契約，在台灣並沒有被要求必須透過一定的要式行為才能生效，且依電子簽章法²⁸⁾(Electronic Signatures Act)的規定，只要讓與契約雙方當事人同意，亦可協議以電子簽章的方式為之，所以關於著作權利的吸納機制，如果著眼的是財產權、經濟權利方面的面向，那就著作權法的預設框架來看，並不會有無法建置的問題。

此外，依著作權法第81條，著作財產權人為行使權利、收受及分配使用報酬，經著作權專責機關之許可，亦得組成著作權集體管理團體來代為進行權利的利用。關於著作權集體管理團體的運作細則，規定於著作權集體管理團體條例²⁹⁾(Copyright Collective Management Organization Act)裡，該條例現在實務上主要是適用在流行音樂、影音多媒體性質的著作權集體管理團體上，但電腦程式著作並沒有被排除在外，故依條例亦得設立相應的電腦程式權利管理團體；而在此條例裡，明示集管團體在充份得到著作財產權利授權或信託讓與的前提下，得以自己名義，為著作財產權人計算，而為訴訟上或訴訟外之行為。以此推論，在台灣將著作權利的吸納機制，運用於自由開源軟體專案的託管上，是相當可行的。

In order to gather all the related copyrights in a FOSS project to make an efficient management or timely disposal of the FOSS project, sometimes the copyright holders will transfer or set up a trust on their rights to a sustained legal entity such as a foundation. On account of that, all the rights of the FOSS project could be governed by the hands of full-time specialists employed by the legal entity. The collective management of copyrights is perfectly possible and doable under Taiwan law. According to article 21 and 36 of the Copyright Act, economic rights of copyrights can be transferred in whole or in part to another natural person or legal entity, only if the details of the transferring has been clearly recorded between the both parties. Besides that, according to article 1 and 2 of the Trust Law³⁰⁾, a right of property can be transferred to the trustee for administration or disposal purposes by a contract. Furthermore, none of the legal formalities are required at law for an economic right transfer or fiduciary contract in Taiwan. And if the both parties agree, according to the Electronic Signatures Act³¹⁾, the contract can also be made in an electronic record way without losing its validities. In a netshell, the assignment of economic rights of copyrights for a FOSS project could be successfully sustained at law in Taiwan, there isn't any known legal conflicts with the assignments.

In fact, provided by article 81 of the Copyright Act, economic rights holders may, with the approval of the Intellectual Property Office, establish copyright collective management organizations for the purpose of exercising rights or for collecting and distributing compensation for use. Detalis about this copyright collective management organization can be found in the Copyright Collective Management Organization Act³²⁾. Although this Act is currently put into practice mainly for organizations dabbling in pop music or motion picture, the computer program is nevertheless not excluding from the applicable list. Therefore, building a copyright collective management organization devoted to one or multiple FOSS projects, to initiate management actions and other civil, criminal, and administrative suits and complaints, is actually quite feasible and practicable at law in Taiwan.

如前所述，著作人格權在台灣被高度保護，其具體內容包括著作的公開發表權、姓名表示權，以及不當修改的禁止權，此人格權利專屬於著作人本身，不得被讓與或繼承，且在著作人死亡或消滅後，仍視同生存或存續。所以一般的法律通說與行政函釋，多認為在台灣著作人格權不得被預先拋棄，僅能約定在特定狀況下不去行使。那麼，依照開放源碼促進會(Open Source Initiative, OSI)所定義的開放源碼定義(Open Source Definition, OSD)第5點及第6點，開源授權不得對任何個人或團體有差別待遇、不得對特定領域的利用存有差別待遇，依據此二項定義來進行分析，在台灣電腦程式對著作人格權的保障，會不會與自由開源軟體不限制利用目的之自由利用原則產生衝突呢？

就著作權法第17條的細部規定來看，這樣的衝突應該是不會發生，該條規範讓著作人得以人格權的立場，禁止他人繼續利用原著作及其衍生著作，但僅在他人以歪曲、割裂、竄改或其他方法，改變著作之內容、形式或名目，致損害原著作人名譽時才會生效。主要能適用此條的著作權客體，應為文學性質的著作權客體，雖然說電腦程式並沒有被排除適用，但一般皆認為電腦程式具有科技應用上的中立性，所以只要是功能性的改作行為，不應被認定構成「歪曲、割裂、竄改」等惡意侵害人格權的行為。再者，自由開源軟體專案的著作人，在投入專案開發時皆已了解並認同，自由開源軟體授權不限制應用目的之規則，解釋上亦當符合前述之「著作人格權不得被預先拋棄，但能約定在特定狀況下不去行使」之法理。

As aforementioned, moral rights of copyrights are highly valued by the Copyright Act in Taiwan and they are applied to computer programs as well as the other copyright works. Moral rights here are consisting of three parts which are right of publicly release, right of paternity, and right of integrity on a copyright work. They belong exclusively to the author and shall not be transferred or succeeded, and the protection of moral rights of an author who has died or been extinguished shall be treated as remaining. In general legal theories and official explanation letters by the authorities, global renouncement of the future exercise of moral rights should be deemed as void, yet the renouncement can still be sustained at law if its scope could be stipulated with details, such as subject, duration, or applied area information. After the brief review of moral rights protection in Taiwan, one might wonder that if we put the FOSS licensing principles in perspective, will the FOSS licensing principles and the moral rights protection rules be in conflict with each other in a way? Because it seems that the protection duration won't expire for the moral rights, yet according to Open Source Definition specified by Open Source Initiative, article 5 and article 6, the author of software distributed under a FOSS license can not oppose the use of the software by certain people and groups or for certain areas of application. So if the author of a FOSS project does declare his everlasting moral rights to lift a ban on certain use of that computer program, in that case, will there be a compromising solution between the moral rights protection and the FOSS licensing principles?

As a matter of fact, such a conflict shall not happen under most circumstances according to the restrictive interpretation of article 17 of the Copyright Act. In this very article, it regulates that: “The author has the right to prohibit others from distorting, mutilating, modifying, or otherwise changing the content, form, or name of the work, thereby damaging the author's reputation.” This provision is mainly applied onto literature works for the most part, although it can also be covered on computer programs as well, however with regard to technical neutralities embodied in the computer programs, a purely functional adaption or modification should not be deemed as distorting, mutilating, modifying works in reputation damaging way to the original author. Moreover, when the original author participates voluntarily in a FOSS project, it is evidently well understood to it that utilization purpose later on to the FOSS project will not be limited, this understanding could be fairly deemed as one acknowledged renouncement of its moral rights with scope revelation and explanation.

如前所述，在台灣電腦程式的授權利用行為，實務上幾乎皆以締約雙方當事人互負權利義務關係的契約行為來視之，因單獨行為於台灣法制裡，在實體法與訴訟法上皆無相關的重要配套。故以下討論自由開源軟體授權行為是否成立與生效，原則上便應以契約行為的角度來進行分析。因為若該授權契約是合法成立且生效的，那藉此契約所傳遞的授權自然也是有效且可執行的，故重要的決定要素在於：(1)自由開源軟體專案授權方與被授權方締約當事人之間的意思表示是否合致、如何合致，(2)該契約是否具法律要求的其他要件，例如以書面訂立、經公證，或其他要式，並且不違反法律禁止的相關規定。以下即以此二個要點，來分析自由開源軟體授權於台灣法制下的有效性與可執行性。

As mentioned previously, due to the lack of corresponding mechanisms either in substantive law or in adjective law for the unilateral act, in Taiwan most courts tend to treat the computer programs utilization agreement directly as a copyright contract dealing with right and duty allocation. Therefore, when it comes to analysis on FOSS licenses validity and enforcement, the licenses themselves will be judged as contracts. In view of that, as long as the FOSS contractual agreement can be lawfully sustained and be put into operation, the license carried on that will also be deemed as valid and enforceable as well. So there are two essential questions needed to be heeded: (i) between whom is a contract reached and when it is reached, and (ii) has the contract been validly reached with all the legal formalities required? Based on these two points, we shall further the analysis on the FOSS licenses validity and enforceability hereunder.

依民法第153條，當事人雙方互相表示意思一致時契約成立。所以關於自由開源軟體專案的授權方式，需要被解答的要點有二，一是自由開源軟體專案授權方與被授權方的締約當事人各為誰？二是在哪一個時間點這些當事人的表示意思是達於一致，而讓授權契約成立的？

關於第一個問題，如果該自由開源軟體專案是由單一著作人所完成的，那法律關係會簡單的多，因為此時該自由開源軟體專案的授權方與被授權方都很容易確認，授權方就是該專案的原始著作人，被授權方就是依自由開源軟體授權條款收受電腦程式專案的後手；而如果該自由開源軟體專案，能夠被認定為著作人間具有共同創作意思聯繫的共同著作，則授權方便為共同著作裡所有的共有人；但若是該自由開源軟體專案，在原生專案釋出之後已經接續被更多人參與修改，而形成一個具不同創意表現內涵的衍生著作時，授權方的當事人究竟有哪些，就會變得相對複雜，一般來說，如果該衍生著作相較於原作，是從頭到尾徹底式的改作，且衍生著作依著作權法第6條，以獨立著作的型態保護之，故授權方在這個狀況下，應就是指衍生著作的著作人，然而，若是該衍生程式僅為原專案功能上的擴張或優化，雖具有相當程度的創意進步，但實際上仍保留了許多原專案的程式碼，未予更動，那麼續依自由開源軟體授權條款散布此一衍生著作時，授權方究竟有哪些權利人，就是一個現行著作權法沒有辦法充份解釋，且非常耐人尋味的問題。然而，多數的自由開源軟體授權條款，皆透過授權條款額外設立的機制，來解決了這個疑慮。多數BSD類型的自由開源軟體授權條款，包括MIT License及Apache-2.0，皆明示容許再授權(sublicense)機制，故該衍生專案的著作人，無論改作狀態的深或淺，皆具相當的法律地位，得以自己名義將衍生著作程式碼向後授權釋出，而GPL類型的自由開源軟體授權條款，雖然著作權方面沒有設置前述的再授權機制³³⁾，但不論是GPL-2.0或GPL-3.0皆明定：GPL授權程式的收受方，得自動從原專案原始著作人處取得執行、修改，以及重製程式的相關授權。所以透過解釋，多數的自由開源軟體授權條款，皆已善加處理締約當事人為誰方面的問題。

而關於第二個問題，在哪一個時間點自由開源軟體授權契約，在締約當事人之間是表示意思達於一致而成立的？可參照民法第161條的規定：「1、依習慣或依其事件之性質，承諾無須通知者，在相當時期內，有可認為承諾之事實時，其契約為成立。2、前項規定，於要約人要約當時預先聲明承諾無須通知者，準用之。」由此觀之，台灣法制認為以「意思實踐」的外顯行為，足以代表契約承諾的意思表示，再者，多數的自由開源軟體授權條款，確實明訂若使用該程式便視為同意授權條款的規範，此亦該當於民法第161條第2項所描述之「要約當時預先聲明承諾無須通知者」，故依此解釋，當收受者取得自由開源軟體授權程式並使用之時，便使授權契約當事人雙方的表示意思達於一致，而讓自由開源軟體授權契約合法成立了。

According to article 153, paragraph 1 of the Civil Code: “When the parties have reciprocally declared their concordant intent, either expressly or impliedly, a contract shall be constituted.” So that for a contractually based analysis on the FOSS project, two fundamental questions should be answered, which are: (i) between whom is a contract reached, and (ii) upon when is the intent mutually declared and accepted?

About the first question, if the FOSS project in question is made by a single author, then the answer will be much easier to clarify: the contract has been constituted between the original author and the respective recipients to the FOSS project. And when it comes to multiple authors, the answer will become a little bit indirect to perceive. But if the multiple authors did contribute to the FOSS project in an intensive consultation way, then the project itself will be deemed as a joint work at law, therefore: the contract has been constituted between all the co-authors in accordance and the respective recipients to the FOSS project. And if the project has been modfied by the successive participant with notable originalities, it can be treated as a derivative work at law, hence: the contract has been constituted between the successive author and the respective recipients to the derivative FOSS project. However, if there is actually no any tangibly consultative relation between the multiple participants, or the very FOSS project has been modified repeatedly with slight contribution without certain originalities, or even the whole project was made in combination with the other FOSS component as a simple adoption without much modification between the two parts, all these described above will lead to a much more complicated situation. Briefly speaking, all the three hypotheses can not easily be explained in full according to the current Copyright Act, either in its copyright type categorization or in copyright management and disposal aspect. Even so, most of the FOSS licenses have been proved to be of assistance to deal with those puzzles, with the help of its complementary contractual stipulations. Take BSD-like FOSS licenses for example, such as MIT License and Apache License 2.0, in these two licenses sublicense mechanism on copyright³⁴⁾ is expressly provided, therefore no matter how far the modification to an original MIT License or Apache-2.0 project has been reached, the modifier will always be entitled to license a derivative work or merely a modification one in his own name. Moreover, although there is no such a sublicense mechanism provided on copyrights in GPL-like FOSS licenses, such as GNU General Public License v2.0, v3.0, GNU Lesser General Public License v2.1, v3.0, and GNU Affero General Public License v3.0, a license relay mechanism has been well explained in similar way in these license agreements. Take GPL-3.0 for example: “Each time you convey a covered work, the recipient automatically receives a license from the original licensors, to run, modify and propagate that work, subject to this License.” To be brief, the aforementioned sublicense mechanism and this kind of automatic licensing to downstream recipients have made up a deficiency to the Copyright Act regulations for FOSS projects, on account of those complementary stipulations: the contracting parties of a FOSS project under a complicated circumstance shall therefore be able to be defined on a case by case basis.

As for the second question, according to article 161, paragraph 1 and 2 of the Civil Code: “In cases where according to customs or owing to the nature of the affair, a notice of acceptance is not necessary, the contract shall be constituted when, within a reasonable time, there is a fact, which may be considered as an acceptance of the offer. The provision of the preceding paragraph shall be mutatis mutandis applied when at the time of offer the offerer has waived notice of acceptance.” Judging from the provisions above, in Taiwan a contract could be deemed as concurring reached and constituted, if the notice of acceptance is predeclared to be fulfilled by action similar to a tangible reply. This is exactly what is happening among the FOSS contractually licensing relations. Most of the FOSS licenses do consist of this kind of waivers of acceptance notice, take GPL-3.0 for example: “by modifying or propagating a covered work, you indicate your acceptance of this License to do so.” So that, in this way both parties of the FOSS licensing contract have made their intent mutually reached and concordant. Therefore when a FOSS project has been received and exploited by the recipients, upon that time the contract between the rightholders and the respective recipients shall be validly sustained at law.

契約行為除了當事人表示意思一致外，也要審視其契約內容或是締約方式會不會違反了其他法律的規定而罹於無效。在台灣法制裡，這些法定要件大體規定在民法第71條、第72條，以及第73條。民法第71條規定：「法律行為，違反強制或禁止之規定者，無效。」第72條規定：「法律行為，有背於公共秩序或善良風俗者，無效。」第73條規定：「法律行為，不依法定方式者，無效。」而若沒有上述條款所描述的狀況，則由當事人依己意自由訂立的契約協議則皆可成立並產生契約效力，此一審視機制在台灣法界被稱為「契約自由原則」。由此一原則觀之，自由開源軟體授權機制，並沒有直接與台灣現行特定的強制性法律條款產生牴觸，此符合民法第71條的規定；而雖然自由開源軟體的實際應用，並不限定使用目的，因不得對任何個人、團體，或特定領域的利用有差別待遇，但進一步來說，所謂背於公共秩序或善良風俗，必須在個案中被審視，故原則上自由開源軟體的授權機制，亦沒有和民法第72條產生直接衝突；最後，台灣現行法制亦沒有特文要求著作權的處份或讓與契約，必須經書面、公證，或其他要式以證成，故自由開源軟體的授權機制，亦沒有和民法第73條的意旨相違背。

再者，以現行著作權法「權利人保留所有權利(all rights reserved)」的預設。未經合法授權者，對他人置於網路流傳程式的任何使用行為，也有可能觸及著作權利的侵害，而若認定取用的電腦程式著作，係已歸於公眾領域的範疇而不受到法律保護，在發生爭議時亦須自負必要的舉證責任，故多數自由開源軟體專案的利用人，若無特別理由，皆不會刻意主張該授權行為的無效性，因為此一主張等同自認明知並故意在無授權的基礎下利用他人著作物。所以綜合法律論理與實務狀況的分析，自由開源軟體授權條款，在台灣具有法律有效性應無太大爭議。

For the full validity of a contract, not only the intent should be reached concordantly between the both parties, but also the contents and formalities must be deemed as not contradicted to the regulations at law. In Taiwan, the legal principles of validities of a juridical act are basically provided in article 71, 72, and 73 of the Civil Code. And all the principles mentioned hereunder are equally applied to the contract as well as a type of the juridical act, such as:

1. Article 71: A juridical act which violates an imperative or prohibitive provision of the act is void except voidance is not implied in the provision.
2. Article 72: A juridical act which is against public policy or morals is void.
3. Article 73: A juridical act which does not follow the formality required by the act is void unless otherwise provided by the act.

Contractual stipulations contrary to these three articles are deemed not to exist. On the other hand, if none of the regulations above have been violated, then according to article 153 of the Civil Code, both parties in a contract relation can therefore constitute an agreement to exchange and distribute their duties and rights freely on their own. The doctrine is treated as the “Principle of Freedom of Contract” in Taiwan. Judging from the fact that the composition of a FOSS contract has nothing to be in conflict with any compulsory regulations as being mentioned in article 71. And take the public policies and good morals into consideration as being asked in article 72, such an uncertain legal concept can only be further explained on a case by case basis, on account of that, a FOSS contract can't be in violation of this provison directly only because the utilization based on that contract is unlimited to purposes. Lastly, none of the legal formalities are required at law for an economic right transfer or disposal contract in Taiwan. So that neither being made in writing, notarization, or other formalities are demanded in a FOSS contract. That is to say, the contract made in FOSS licensing way also doesn't have any inconsistence to article 73 of the Civil Code. Briefly speaking, a FOSS license contract is evaluated to be sustained, according to the “Principle of Freedom of Contract” and reviewing based on the three criteria listed above.

Moreover, because of the “All Rights Reserved” principle set forth by the Copyright Act, exploiting computer programs without the author's expressly consent could be a copyright violation. That means without a lawful license, the utilization of softwares downloaded from the internet could jeopardize oneself in the danger of a copyright infringement. And even the user claims that the softwares in question were received as they have already been put into public domain, when the legal issues arouse this will still need to be proved by the user nevertheless. As a result of that, most people will not try to dispute the very existence and validity for a FOSS contract if they just receive this FOSS project without other legal stands. Because if they do assert that the FOSS contract between the authors to them don't exist, then this implies no legally valid copyright license has been granted to them, and the users hence might not be able to use those softwares at all. Judging from the legal deductions and case analyses above, the contractual FOSS license agreements should be sustained at law and therefore be able to be enforced without dispute in Taiwan.

傳統上，自由開源軟體授權條款皆預設內嵌一段為著作人降低責任的免責聲明與免責條款。此一免責機制的理由主要是，多數的自由開源軟體皆是以免徵收授權金費用(royalty-free)的方式在網路上免費散布，故基於權責衡平的原則，透過授權條款調降著作人的相應責任。此一機制就台灣法制觀之，並沒有產生直接的衝突，然而，在台灣民法第222條明訂：「故意或重大過失之責任，不得預先免除。」所以若是自由開源軟體授權條款的免責聲明，將故意或重大過失羅列在免責範圍裡，那麼此時依台灣民法第111條的規定，逾越法律容許範圍的免責聲明將會被視為無效，然而，除去此逾越的部份，契約的其他部份亦可成立者，則其他部份仍為有效。民法第111條此一規定，亦恰與GPL-2.0第7條第2項讓條款規定「盡量適用³⁵⁾」有所呼應。所以說，在無償、非商業性散布的前提下，自由開源軟體授權條款預設的免責聲明，在台灣法制下應會受到最大範圍的尊重，但對於故意與重大過失的預先免除，則是無效的。

然而若是有償、涉及商業性散布的狀況，則此免責聲明是否能夠成立，就必須在個案裡受到個別的審視。因為自由開源軟體授權條款具有預先擬定、甚難為被授權人修改的特性，故在台灣法制下，其很有可能會被直接認定為民法第247-1條，以及消費者保護法第12條所規範的「定型化契約條款(standard contract)」，被認定為定型化契約條款的法律效果，是此類型契約條款的內容，若是免除或減輕預定契約條款之當事人責任顯失公平者，便可被承審法院裁定該部份約定無效。而再參酌民法第354條與355條的規定，指出在買賣行為時，出賣人應擔保其物於移轉時，具有其所保證之品質。所以說，在商務性提供自由開源軟體專案為產品的狀況下，授權條款預設的免責條款效力會被調整，甚至被承審法院認定為無效，除非提供該產品的商業公司，能舉證其已具體將軟體瑕疵的資訊在締約前便清楚告知消費者，才能夠不去擔負商業行為裡其本應擔負的產品瑕疵保證責任。

Typically, there will be certain exoneration clauses declared as a disclaimer of warranty and limitation of liability in the FOSS licenses. Which means to relieve the authors and contributors of the FOSS project from all kinds of liabilities as many as possible. Judging from the fact that most of the FOSS projects are distributed on a royalty-free basis, and put the “Right and Duty Equity Principle” into consideration, this kind of liability prerelease mechanism will be reasonably sustained at law to some extent in Taiwan. However, it is explicitly demanded in article 222 of the Civil Code, that the “responsibility for intentional or gross negligent acts shall not be released in advance”. Abide by that, if respective one FOSS license does mean to relieve the authors and contributors from all kinds of liabilities including the one that is caused by an intentional or gross negligent act, the exceeding part according to article 222 and article 111 of the Civil Code will be deemed as void at law. However, for this FOSS license, the other part within the scope permitted at law shall remain valid. This “partly void yet partly valid” mechanism presented in article 111 happens to be echoing to article 7, paragraph 2 of the GPL-2.0³⁶⁾. All in all, if the FOSS project is distributed as noncommercial purpose and free of charge, then the disclaimer of warranty and limitation of liability clauses will be respected to a maximum extent, however the responsibility for intentional or gross negligent acts will not be relieved in advance, any waivers come to this degree will be treated as void at law.

Even so, when it comes to commercial distribution with fees charged, the question about whether the disclaimer of warranty and limitation of liability can stand at law or not, shall be examined and evaluated on a case by case basis. Moreover, because of the preconcerted and fixed characteristic of a FOSS license, the FOSS license itself could be easily recognized as the “Standard Contract” defined in article 247-1 of the Civil Code and article 12 of the Consumer Protection Law in Taiwan. And one of the legal effects of being treated as a standard contract is that if the court finds that certain stipulations in the contract are turning to be obviously unfair, such as releasing or reducing the responsibility of one party and increasing the responsibility of the other party which is contrary to the principle of the equality and reciprocity, it can be declared as void directly by court at law. In view of article 354 and article 355 of the Civil Code, it also tells that: “The seller of a thing shall warrant that the thing sold is free from any defect in quality which may destroy or impair its value, or its fitness for ordinary efficacy, or its fitness for the efficacy of the contract of sale.” According to this clause, when a FOSS project has been put to use as a selling product, the prearranged disclaimer of warranty and limitation of liability clauses would be regulated and modulated to a certain degree. Unless the seller has already expressly revealed the defect to the buyer, otherwise he will still be held responsible for the quality of it offering. FOSS projects being part of the offering or not, does not affect this legal demand at law on a compulsory basis.

著佐權(Copyleft)乃針對著作權(Copyright)之「相左」概念而創造出來的機制與名詞，一者向左一者向右，最早提出此一名詞的人是自由軟體基金會(Free Software Foundation, FSF)的創立發起人Richard M. Stallman。此名詞不必然帶有特定的意識型態，然而其確實與現行著作權法的預設有反向對應的意涵。即便如此，Copyleft在演繹上所表達的具體意涵應為：「奠基於著作權法體制之下，但反其道而行，以不同一般傳統模式的方法來分享電腦程式的利用。」透過Copyleft機制，自由開源軟體專案的著作人在得以自行處份著作權利的地位上，透過授權條款將本專屬於自己的著作權利提供出來，讓他人可以依照授權條款律定的規則來產生原程式的衍生著作，但此一授權條款同時要求基於該程式的衍生著作，未來在散布上或利用上，必須遵照一樣的授權機制來運作，從而只要該電腦程式的原專案或衍生專案持續受到散布，則其每一階段的程式源碼皆不會受到封閉，而能夠永遠以開源的型態被公眾取得。

This term of copyleft is first proposed by Richard M. Stallman, founder of Free Software Foundation. Copyleft is not necessarily an ideological term, although it is indeed created to make a contrast to the notion of copyright. Its discourse, however, still works within the scope of the copyright basis. In other words, the notion of copyleft can be summarized as: “A way of sharing that computer programs within the framework of the copyright system, albeit in ways different from the common practices.” Based on that, authors of FOSS projects can therefore still claim the rights given to them by the copyright law and at the same time set the rules by stipulations on how other people can use their works. Furthermore, authors can only allow other people to perform applications, modifications and adaptions to the original computer programs, on condition that the distribution of the original and derivative works would be in exactly the same way by a FOSS license agreement. So that it is assured that these works can continue their free circulation in utilization. This is the central idea of the notion copyleft: “Authors requiring their original and derivative works to be continuously available under the same rules to the public.”

典型透過Copyleft機制來建立專案共工模式的授權條款，為FSF統籌編撰的GPL系列各版本條款³⁷⁾。部份論者將GPL類別程式帶有的Copyleft特性稱之為「授權拘束性(License Inheritance)」或「授權攫取性(License Capture)」。舉GPL為例來說，當使用者將GPL授權的程式碼抄寫到自己的軟體專案時，如果抄寫程度佔專案程式碼量化上相當的比例，或是此一GPL授權元件提供了專案的核心功能，並且專案的其他元件在互動上亦無法與其分離運作，則整個軟體專案將會一體被視為此GPL授權元件的衍生著作，嗣後使用者如果再行散布這個衍生的軟體專案，便僅能適用GPL的授權方式來進行釋出。

The classic model of such a licensing mechanism is the respective versions of GNU licenses³⁸⁾ drafted by FSF. Some critics even give the characteristic supported by copyleft principle in the GNU licenses a new term, such as “License Capture” or “License Inheritance”. Take GPL for example, License Inheritance means that an adopter’s entire project might be considered as a derivative work of a GPL-licensed component if one of the following conditions is fulfilled when the adopter copies the codes either in source form way or in binary form way from a GPL-licensed component into its ongoing software project. Firstly, the portion copied comprises a substantial part of the software project; or secondly, the GPL-licensed component provides core function for the software project and inseparably interacts with the other components of such software project. If any of the conditions above has been positively reached, then the software project in question will be deemed to be a creation adapted from the pre-existing GPL-licensed component, therefore renders it as a derivative work of the GPL-licensed component. As a result of that, the adopter can only distribute its accomplished software project under the same GPL if it chooses to.

Truth to be told, in the area of computer programs, defining the scope of a “work based on the original work” has been recognized as relatively challenging. This is because that components, in a mid or large size software project, often call or access each other to cooperate. In addition, when different components are developed, each authors may be developing its own components independently without consultation with each other for accessibility and license compatibility. Therefore, unless the correlating and co-pending relationships of different components are determined on a case by case basis, it would be hard to directly determine whether there is actually such tight connection of inheritance and reliance so as to determine whether the entire software project is derived from one specific component.

Nevertheless, simply putting a GPL-licensed component into a software project does not necessarily trigger its License Inheritance based on the GPL. In fact, many users has kind of misunderstood and thus wrongfully interpreted the License Inheritance and used the “all-inclusive” terminology as a simplified but not specified metaphor to describe the License Inheritance effect. As a matter of fact that quite a number of the core members of the respective GPL projects have now and then stated something like, if a GPL-licensed component is not heavily related to the other components in the entire software project, it renders the License Inheritance of the GPL component as unable to be expanded to the other components of the software project. Such standpoints might include that the GPL-licensed component communicating with the other components through a dynamic link or the developer of the software project in question might be able to find similar component in function yet under the other licenses to easily replace the GPL-licensed one. However, if the GPL-licensed component communicates with the other components through a static link, or it represents a core function of the whole software project, such GPL-licensed component hence becomes highly correlated with the entire software project and can not be easily replaced in any case. Accordingly, separating such GPL-licensed component would cause a chain reaction and affect the entire software project. In other words, the other components of such software project will be considered as derivative works of the GPL-licensed component, and the entire software project will fall within the expansive scope of the License Inheritance of the GPL.

關於Copyleft機制在台灣法制上是否有效，首先要先分析自由開源軟體專案的原作者是否於法有權進行Copyleft機制的建置；其次，則是要分析此一機制在台灣法律體系裡可能被認定的地位為何，以肯定其形式有效性；最後，則是要更進一步探討Copyleft機制的運作，會否有被認定為權利濫用而不能運作的可能性，以確立其實質有效性。

關於第一點，依著作權法第28條的規定：「著作人專有將其著作改作成衍生著作或編輯成編輯著作之權利。」所以自由開源軟體專案的原始著作財產權人，專有此專案的改作權，既然其於法有權決定何人可以或是不可改作其原生軟體程式，再參酌「契約自由原則」之法理，著作人既依法享有專用的改作權，自然可憑此地位採取自訂的Copyleft機制，來限制後手改作其原作品之後的運用方式。

這樣依契約向程式後手改作者律定條件的方式，依民法第99條第2項，可視為法律行為的「解除條件(resolutory condition)」，所謂的解除條件，指的是當此條件成就時，原訂法律行為便失其效力。可說，此一觀點亦適切呼應GPL系列授權條款，在條款內容所揭櫫之：「不依條款規範對程式所為之修改及重製行為皆為無效，並會讓使用者原先取得的相關授權罹於失權。」而當原生程式的改作人，釋出衍生程式不依Copyleft機制的設定來走時，此時其從原程式著作人取得相關著作權授權所賴之契約因解除條件成就而失效，在這之後，該改作人若還繼續散布衍生程式，原程式著作人便可以改作權持續受到侵害為由，向改作人提出著作權利侵權之訴。

從上述觀點審視，內含Copyleft機制的自由開源軟體授權條款，在台灣法制下係於法有據，可被定位為「附解除條件之雙務契約³⁹⁾(bilateral contract with resolutory conditions)」。然而，依民法第148條的規定，任何法定權利的行使皆不得濫用，其應依誠實及信用方法為之，且不得違反公共利益，或以損害他人為主要目的。那麼以此標準來檢視自由開源軟體授權條款內嵌的Copyleft機制，此種接續不間斷拘束程式後手改作者授權選擇的連環機制，會不會形成一種權力濫用？從實論之，以當前較多人使用的GPL-2.0、GPL-3.0、LGPL-2.1、LGPL-3.0、MPL-2.0、EPL-1.0，以及AGPL-3.0授權條款運作的Copyleft機制來看，應不該當前述民法第148條所述權力濫用的類型，且就Copyleft機制拘束的範圍來看，前例條款仍以衍生著作的定義為限，MPL-2.0與EPL-1.0，更主動將Copyleft機制的影響範圍，限縮於原檔案的改作關係，或是原模組的改作關係下。從而此種奠基於改作權基礎下的Copyleft機制，不應被視為著作權利的濫用。

To find the answer about how the copyleft principle can be sustained and held valid under the law system in Taiwan, it should fundamentally be guided into three questions. The first question is, whether author of the original work can validly make an arrangement for how the derivative works need to be distributed. Secondly, if affirmative above, how to explain the copyleft principle on a copyright analysis, namely, can the interpretation of copyleft be sustained at law in form. Thirdly, can the enforcement of copyleft be validated at law without falling into the dispute of right abusing, and therefore be held valid substantively.

About the first question, it could be well explained according to article 28 of the Copyright Act, which is an author of the original work has the exclusive right to create a derivative work, or compile into a compilation, of the original one. Therefore, if a software component is not developed from scratch but rewritten from or derived from other people’s existing work, the original author’s consent needs to be acquired before such later developer may perform certain modifications or adaptions on the preexisting work. Similar clauses can be found in section 101 of title 17 of the United States Code: “A derivative work is a work based upon one or more preexisting works.” So that, the original author does have the right to determine which one can and which one can not perform the modifications and adaptions onto its original computer program. Moreover, take the “Principle of Freedom of Contract” into consideration as well, the original author hereby is entitled to lay down the utilization of the derivative work for a particular use, or link certain conditions onto it.

It turns out to be the author does have the right to make certain arrangements to the derivative works based on its exclusive right on modifications and adaptions of the original work as a trade off between it and the recipients. Such copyleft content in a FOSS license agreement seems to be sort of terms of interchange, but how we define that in the law system of Taiwan, can it be determined in nature and found the right place at law to fit in? Here comes the second question and its answer, according to article 99, paragraph 2 of the Civil Code the copyleft principle could be deemed as a resolutory condition adhered to the contract, because when the violation of it has been reached, the license granting contract between the original author and the recipients shall cease to be in existence. Take GPL-3.0 for example, it declares such a statement in the termination section as: “You may not propagate or modify a covered work except as expressly provided under this License. Any attempt otherwise to propagate or modify it is void, and will automatically terminate your rights under this License.” Therefore, copyleft principle could be treated and sustained as a resolutory condition at law in form, it will not be activated by the time when the recipients just receive the FOSS project, however if the recipients do make modifications or perform certain adaptions on the FOSS project and distribute the derivative works in a wrong way which is forbidden by the FOSS license. In that case, this disobedience to the copyleft principle will fulfilled this resolutory condition and hence ceases the contract between both parties. After that, the legitimate status for the recipients to continuously perform the modfications, adaptions, or distributions on the original work and derivative works has been breached or revoked. In view of that, the author of the original work can therefore initiate the complaint or litigation to the recipients for the copyright infringements.

Based on the legal deduction above, copyleft principle stipulated in the FOSS licenses could be supported at law as a resolutory condition provided in the Civil Code of Taiwan. To be specified precisely, a FOSS license agreement can be deemed to be a “bilateral contract with resolutory conditions”⁴⁰⁾. However, according to the legal principles, there is no right entitled at law can be abused by the holders in any extreme ways, this is also fairly elaborated in article 148 of the Civil Code in Taiwan as: “A right can not be exercised for the main purpose of violating public interests or damaging the others, and it shall be exercised and a duty shall be performed in accordance with the means of good faith as well.” Judging from these criteria upon copyleft principle in the FOSS licenses, could it be likely to deemed as rights abusing in a way or not? As a matter of fact, there is no any solid legal inference has been concluded on that, even so, most critics in Taiwan think that except for the worst case might be found on a case by case basis, the copyleft principle is basically having nothing to do with the right abusing. Take the currently most applied FOSS licenses with copyleft principle for example, such as GPL-2.0, GPL-3.0, LGPL-2.1, LGPL-3.0, MPL-2.0, EPL-1.0, and AGPL-3.0, the extensive scope regulated by copyleft principle in them is still fundamentally limited to the typical area of the derivative work defined by the copyright law or other related software acts. In the MPL-2.0 and EPL-1.0, the regulated scope has even been restrained to the file-based or module-based boundaries. Although in the GPL-3.0 and AGPL-3.0, the drafters take the term “work based on” to replace “derivative work” in the previous license versions, it still shows that the extensive scope based on copyleft principle is limited to some extent. On account of that, as for the third question about whether the enforcement of copyleft principle can be validated at law or not in the substantive point of view, the answer should be positive. Moreover, sometimes authors do choose a FOSS license with copyleft principle for a certain reason, one might hence be able to set forth its dual-licensing business model with a copyleft FOSS license and a proprietary software license on the same software project at the same time, or one might therefore make a confirmation that the software released can continue its free circulation and be brought back to its own utilization one day in exactly the same way as it was given away at the beginning. As a whole, judging from the fact that the copyleft principle might be chosen by an author with discretion for its own lawful copyright management, and under most circumstances it will also not be deemed as exceeding beyond the protection of public interests. Therefore it should be sustained and held valid at law in Taiwan, either in form or in substantive evaluation aspect.

台灣的著作權法具有特別刑法的特性，就侵權情節惡性重大的著作權侵害事件，將可以透過刑事訴訟系統來進行訴追，並課予罰金、拘役，與有期徒刑等刑罰，故在著作權侵權的損害賠償上，並無二倍、三倍等懲罰性賠償金的設置。而就軟體著作而言，亦全盤適用上述通則，故在發生電腦程式著作侵權事件時，被害人得依著作權法第88條第3項的規定，擇一選擇損害賠償金額的計算方式，第一種計算方式是請侵害人提出其因侵害行為所得之利益，在扣除其成本或必要費用之後，以餘款為損害賠償的金額，但若侵害人不能證明其成本或必要費用時，便以侵害行為所得之全部收入，為損害賠償的金額。

而第二種損害賠償金額的計算方式，便是適用民法第216的規定，由被害人自行計算其因侵權事件所受到的損害，及所失去的利益，並以此二數額累計為損害賠償的要求金額。然而，由於自由開源軟體授權多採「無授權金基礎(royalty-free)」的方式釋出，故在此方式之下，權利人將較難據以舉證自己蒙受了哪些金錢損失，更難以聲明自己失去了哪些金錢利益，除非在雙重授權模式下，該專案併行運作自由開源軟體授權模式，以及傳統的商業授權模式，若是如此，該著作權利人將可援引商業授權版本的營收資訊，以類推計算出其因侵權行為所受到的損害及失去的利益。然而，若該專案並非以雙重授權模式進行運作，也並不代表被害人完全無法據以主張權利侵害的賠償計算方式。因為依著作權法第88條第3項第1款後半段之規定，若被害人不能依所受損害及所失利益的方式計算出損害額時，亦得援引其行使權利依通常情形可得預期之利益，減除被侵害後行使同一權利所得利益之差額，為其所受損害。此之所謂類推估算授權金額的方式(analogy license)。倘若依類推估算的方式，被害人仍然不易證明其實際損害額，必要時，其亦得請求法院依侵害情節，在新臺幣一萬元以上一百萬元以下酌定賠償額。如損害行為屬故意且情節重大者，賠償額得增至新臺幣五百萬元。

As set forth previously, some articles of Copyright Act in Taiwan are deemed as special provisions to the general Criminal Code. Therefore, when a copyright infringement has been made on purpose, it is the public prosecutor who can initiate the prosecution upon complaint, and suggests the imposition of fine, detention, or imprisonment onto the intentional violator. Considering that an intentional or malicious copyright infringement could already be punished by criminal measures, there is actually no punitive damages to double or triple amount could be claimed under the Copyright Act. And this rule is applied to computer programs as well as other copyright works. According to article 88 of the copyright Act, a person who unlawfully infringes on another person's economic rights out of intention or negligence shall be liable for damages. With regard to the damages, the injured party may make claim in any of the two manners provided in article 88, paragraph 3 of the Copyright Act at its choice. The first option is to request the submission from the infringer about the amount of benefit obtained on account of this infringing activity, basically the damages will be equal or close to the obtained benefit, which is the revenue derived from the infringement deducting the costs and other necessary expenses. However, if the infringer is unable to establish the details for the costs and related expenses, then the obtained benefit in question should be deemed as the total revenue derived from the infringement.

The second option to calculate the damages is in accordance with the general applicable principles of the unlawful act, provided in article 216 of the Civil Code. Abiding by that, the damages shall be the injury suffered and the interests lost to the injured party owing to the infringement. However, if the injured party is unable to prove damages in detail, an analogy calculating alternative can hereby intervene. According to article 88, paragraph 3, subparagraph 1 of the Copyright Act, the injured party may base the damages on the difference between the amount of expected benefit from the exercise of such rights under normal circumstances and the amount of benefit from the exercise of the same rights after the infringement. This analogy license claim is quite useful and practical for an author in need of claiming its compensation on the infringement of a FOSS project. Because, although there are certain doable and flexible business models could be performed for benefit earning on the FOSS projects, such as service providing, product value-adding, dual-licensing way and so forth. Quite a number of the FOSS projects are still basically provided on a copyright royalty-free or even patent royalty-free basis. By making the analogy license claim, the injuried party can therefore save the situation if the calculation to the injury suffered and interests lost are proven to be too complicated or time-consuming in reality. Lastly, if it is still difficult for the injured party to prove actual damages in accordance with the solutions provided above, it may request that the court, based on the seriousness of the matter, directly set compensation at an amount of not less than ten thousand and not more than one million New Taiwan Dollars. And if the damaging activity was intentional and the matter serious, the compensation awarded by the court may be increased to five million New Taiwan Dollars at most.

截至本文完稿前(2013年7月)，在台灣仍未有直接涉及自由開源軟體授權專案的司法訴訟案件。然而，就「公眾授權免費軟體專案(Freeware Project)」而言，有台灣台北地方法院87年度易字第2055號刑事判決，以及台灣高等法院87年度上易字第5401號刑事判決，可資參考。此二判決為「中國象棋 v.1.0視窗版」著作權侵害案件的一級審及二級審判決，軟體作者吳身潤(Sheniun Wu)先生曾將其所撰寫的中國象棋博奕軟體，上傳至清華大學教育網路，並以「免費提供、允許收取工本費用方式重製散布」的條件，公告曉諭公眾得以下載。後此程式經遊戲軟體光碟商家收錄，並進行大量的重製及販賣而受吳身潤先生提出告訴。此二訴訟判決的對象並非自由開源軟體授權專案，故亦無就改作權、Copyleft機制等議題進行討論，但無論一、二審法院，皆於判決理由書中明示著作權人對公眾曉諭之授權聲明，為具有正常法律拘束力的有效著作權授權契約，故就台灣著作權公眾授權契約之有效性認定上，仍具有相當的參考價值。

By the time the Taiwan chapter has been finished, there is still no any FOSS cases have been reported yet (July 2013). However, if it comes to the “Freeware” project lawsuits, as in similar general public licensing way, there is one index case about “Chinese Chess v.1.0” software might be a fine reference. This case has been verdicted by the Taipei district court of criminal case number 2055 in year 1998 as its first instance of court, and by the Taiwan high court of criminal case number 5401 in the same year as its second instance of court. The author of Chinese Chess v.1.0 is Sheniun Wu. Mr. Wu once uploaded the Chinese Chess v.1.0 developed by him to the educational TANet of National Tsing Hua university in Taiwan, and distributed it under a simple license condition as “being free for everyone to redistribute the program with limitation of no more than the physical cost of the redistribution can be charged”. After a while, the program has been included into a CD medium by the computer program vendors, and hence be sold together with the CD copies for commercial profit. When Mr. Wu realized the situation above, he submitted a legal complaint to the authority, and therefore this case has been brought to court by the litigation from the public prosecutor. Because the software in question is fundamentally a Freeware, that means none of the copyright assignment and the copyleft principle topics have been discussed by court, however, either the court of first instance or the court of second instance has both ruled that the contract binding and relation between the software author and the software recipients are perfectly established by the general public licensing way, and should be held valid, according to article 161 of the Civil Code, when the notice of acceptance in a contract is predeclared to be fulfilled by action similar to a tangible reply.