The Intellectual Property Court rendered the 103-Zhu-Su-60 Civil Decision of December 20, 2014 (hereinafter, the "Decision"), holding that when obtaining pictures from an ordinary corporate website, an Internet user is required to conduct proper verification regarding whether a lawful license has been obtained in order to fulfill the duty of care as a good administrator.
According to the facts underlying this Decision, the Plaintiff is a subsidiary of Fullerton Technology Co., Ltd. and is dedicated to publishing creative digital contents and audiovisual materials. Its customers can obtain licenses for original pictures through the Plaintiff's website. The Plaintiff found that the Defendant's company had reproduced and publicly transmitted at its corporate website and blog without obtaining a license from the Plaintiff the works at issue whose copyright is enjoyed by the Plaintiff and further claimed damages for tort from the Defendant. The Defendant asserted that such pictures were obtained via the Baidu search website and that the Defendant did not willfully or negligently infringe copyright.
It was first pointed out in the Decision that the liabilities for tort require that the actor is "willful" or "negligent." "Negligence" is the criterion for the duty of care assumed by a good administrator. To wit, this means that "negligence" is established when the duty of care required of an individual with appropriate knowledge, experience and sincerity is not performed according to general transaction concepts.
It was further determined in the Decision that although the webpage of the Baidu search website as produced by the Defendant contains pictures similar to the works at issue, still a fee schedule for different resolutions is provided on the right and it is not true that the pictures are provided for free. Since the Defendant's company obtained and used pictures from such website and did not create the pictures on its own, it should have foreseen that the pictures might involve copyright issues. However, it did not conduct proper verification to avoid infringement upon the copyrights of others. Therefore, it cannot be perceived to have performed the duty of care as a good administrator and is still negligent for copyright infringement. Hence, the Decision compelled the Defendant to pay damages in the amount of NT$90,000.