論著作權法中“合法來源抗辯”的正當性及範圍

Whether the“legal source defense”under the Copyright Law can be applied to rental activities and the online display of photographs of goods embodying works (copies of works) is related to justification explanation of the“legal source defense”. The legitimacy of the“legal source defense”stems from the characteristics of subsequent distribution (resale of copies), that is, the transfer of ownership after purchasing copies made and initially distributed by others, which lacks a mechanism for obtaining direct permission from the copyright holder. Resellers find it difficult to ascertain whether the production and initial distribution of the copies are legal, and their business profits come from the difference between the purchase and sale prices of the copies, rather than from the use of the work detached from its medium. Therefore, limiting the reseller's duty of care to ensure that the copies are purchased from legitimate channels is justified. The application of the“legal source defense”to rental activities, which do not involve the transfer of ownership, lacks legitimacy and represents a legislative flaw in the Copyright Law. But when resellers display photographs of goods on platforms, it is ancillary to their resale activities, and thus the“legal source defense”can be appropriately applied.