Case law


According to article 3(1)(1) of the Copyright Act, a "work" is a creation within a literary, scientific, artistic or other intellectual domain. Such a work shall possess "originality" and a specific form of expression, and shall not constitute the subject matter listed in article 9(1) of the Copyright Act (ie, works that cannot enjoy copyright protection).

The term "originality" means that the work:

  • was created independently, without plagiarism; and
  • expresses the author's thoughts, feelings, personality and uniqueness, and is distinguishable from prior works.

In practice, if a plaintiff asserts a copyright claim without presenting explanations and evidence to prove that they created the work and that the elements of the Copyright Act are met, the court may hold that the plaintiff has failed to fulfil the burden of proof required by the term "originality".

Case law

In a 2021 civil judgment,(1) the Intellectual Property and Commercial Court (IPCC) emphasised the plaintiff's burden of proof with regard to the term "originality".

Even though the plaintiff had presented a certificate issued by a government agency to prove that the Mazu(2) chair was their creation, the IPCC indicated that the certificate did not constitute a textual record of the plaintiff's work, but only proved the plaintiff's participation in the relevant activities. The certificate failed to justify that the plaintiff was the creator of the Mazu chair.

Further, even though the photos presented by the plaintiff showed cards with the plaintiff's name and text reading "Divine Sedan Chair (God's Sedan Chair)", as well as a chair, the IPCC could not determine from the photo whether the chair was the Mazu chair in dispute. Accordingly, the IPCC concluded that the evidence provided by the plaintiff could not serve to prove that the plaintiff was the creator of the Mazu chair in dispute.

In a 2019 civil judgment,(3) the IPCC indicated that it could not tell from the manuscripts of hand-painted drawings presented by the plaintiff who drew the manuscripts, nor the actual date of completion of the illustrations or the time of their public publication. Hence, doubts about the date of completion and publication of the works remained.


It is undeniable that assessing "originality" is the first step in copyright claims. The court will require the plaintiff (ie, the author) to prove how the work complies with the "originality" requirement (eg, by presenting evidence of the creation process). Authors should keep relevant evidence during and after the creation process to prevent their copyright status from being challenged by the court or a counterparty when asserting copyright in the future.

For further information on this topic please contact Alina Tang at Lee and Li Attorneys at Law by telephone (+886 2 2715 3300) or email ([email protected]). The Lee and Li website can be accessed at


(1) 2021 Min Zhu Su Zi No. 92.

(2) The word "Mazu" refers to a Chinese sea goddess.

(3) 2019 Min Zhu Shang Zi No. 5.