An original computer program is protected under the Copyright Law. As for how to determine if computer program copyright is infringed, the Intellectual Property Court rendered the 102-Min-Zhu-Shang-20 Civil Decision of September 3, 2014 (hereinafter, the "Decision") to provide detailed elucidation and application of such requirement and indicated that when a computer program requires the use of specific parameters for certain computer specification, the principle of scenes a faire is satisfied and there is no copyright infringement.

According to the facts underlying this Decision, Company A, which developed a1 and a2 computer programs, asserted that the computer program which is part of the b1 computer program produced by Company B that generates the screen shot on a computer screen is entirely reproduced from the user interface and code used by the Company A's a1 and a2 computer programs and infringes the Company A's copyright to all the works at issue. The Company A also claimed damages from the Company B.

It was concluded in the Decision that the Company B did not infringe the Company A's copyright for reasons highlighted below:

  1. b1 does not infringe the a1 and a2 computer programs:

It was held in the Decision that the criteria for determining computer program infringement include (1) access and substantive similarity and (2) an abstract test method to extract, filter and compare routines. In this Decision, the Company A's a1 and a2 computer programs were deconstructed and were determined to be protectable after routines were extracted and filtered.

With respect to the aspect of expression, public domain matters such as highly abstract thoughts or concepts and portions constrained by efficiency or external factors such as computer software and hardware functions were filtered out. And then, the copyrighted expression portions of the b1 computer program and the a1 and a2 computer programs and the degree of substantive similarity between the programs were compared to determine if the b1 computer program infringes the copyright to the a1 and a2 computer programs.

The Taiwan Electronics Testing Center, which was obtained to investigate the computer programs, concluded that the source code or object code is different, that the operation in setup screens, the coding, access of the setup files by execution files, and the particulars are different, and the overall appearances of the setup screens for user interfaces are not substantively similar, either. Therefore, there is no way to conclude that copyright is infringed by way of plagiarism or adaptation.

  1. There is no copyright infringement for the unprotected portions of the a1 and a2 source code:

In this Decision, the "restricted" scope of copyright protection of computer programs (i.e., illegibility for copyright protection) was elucidated, including:

  1. The merger doctrine of idea and expression

The merger doctrine of idea and expression means that ideas and expressions are indistinguishable or inseparable, or that thoughts or ideas only have one or very limited means of expression. As a result, expressions and ideas are merged. If they are protected under the Copyright Law, thoughts will also become a subject matter of protection under the Copyright Law, resulting in the peculiar phenomena of monopolizing thoughts.

  1. Scenes a faire

This means that when a certain theme is being processed, it is unavoidable or inevitable to use processing methods for certain events, characters, layouts or scenes. Such inevitable or unavoidable processing methods cannot be copyrighted; otherwise this will lead to monopolized processing methods for handling certain themes. For computer programs, when a computer programmer develops and writes computer programs, the programming methods may be constrained by external factors such as specific computer specifications, the compatibility of computer programs to be combined, and general coding convention. This will lead to specific programming methods whose usage becomes indispensable or inevitable

  1. The principle that typical terms are not copyrighted:

Under Article 9, Paragraph 1, Subparagraph 3 of the Copyright Law, common symbols, typical terms, formulas, numerical charts, forms, notebooks, or almanacs shall not be subject matters of copyright. Therefore, since expressions used in computer programs such as typical coding lack the minimum creative elements for works, they are certainly not copyrightable.

With respect to the application of Therefore, it is necessary to apply scenes a faire here. The computer programs of both parties are executed for certain computer specifications. The sources and types of timing information for the computer programs are constrained by external factors such as certain computer specifications and the image source system they are connected with. As a result, it will be inevitable or unavoidable to use the definitions of certain parameter bytes and expressions such as notation and remarks. Therefore, it is necessary to apply scenes a faire here. It was also pointed out that although both set up the same IP address (192.43.244.18) for the Network Time Protocol Server (NTP Server), still such IP address is the IP address set up by the National Institutes of Standards and Technology (NIST) for the NTP Server, which is a commonly used server openly provided for use by general public for setting their network time and is also habitually used by computer programmers in setting up an IP address for the NTP Server. There are grounds for applying scenes a faire.

Therefore, although it was held in the Decision that the identical or similar parameter names or code exist in the source code of the computer programs, still infringement is not constituted due to relevant determination principles for computer programs, such as the scenes a faire and the principle that terms and slogans are not copyrightable.

In view of the major reasons mentioned above, it was held in the Decision that since the B did not infringe the A's copyright in this matter, the claim that the B should be jointly and severally liable for damages was lack of legal grounds. Therefore, the A's appeal was rejected.