The Copyright Act stipulates that "the author of a work shall enjoy copyright upon completion of the work" and adopts the principle that copyright is vested automatically. An application or registration is not required to obtain a copyright. If a work is the creation of an author and not the result of plagiarism, the work is deemed original and is entitled to protection under the Copyright Act regardless of whether it resembles the work of another person. The Supreme Court took this approach in Judgments 2003-Tai Shang-1339 and 2008-Tai Shang-1214.
Therefore, when determining the originality of a work, the key lies in identifying whether the work is self-created or whether plagiarism is involved. The existence of a similarity or resemblance should be deemed immaterial when complying with the Copyright Act to protect independent works. As to what level of proof is required to determine that plagiarism is involved, there seems to be no concerted position in either judicial practice or academic opinion. On November 6 2015 the IP Court adopted a strict definition of originality in Civil Judgment 2015-Min-Zhu-Su 31.
The defendant claimed to be the author of a disputed artistic creation and filed a criminal action against the plaintiff and the plaintiff's client, alleging copyright infringement. The plaintiff went to the IP Court to determine that there was no existing copyright for the disputed artistic creation. The defendant argued that it held a copyright and provided evidence of a registration certificate issued by the National Copyright Administration of China. However, the plaintiff submitted an online article published before the issuance of the certificate, claiming similarity between the disputed artistic creation and the article's attached image and hence an absence of originality.
The disputed artistic creation, while complex in structural composition, largely resembled the webpage image in detailed analysis, comparison and appearance. The defendant and the publisher of the article worked in similar business services in interior decoration and bedding products. The court determined that the disputed artistic creation had resulted from the defendant's coming into contact with the webpage image and that it lacked originality. The work could not therefore be protected under the Copyright Act.
The definition of originality appears to have been based on the principles of 'having come into contact with' and 'being substantively similar', which are often cited when adjudicating copyright infringement cases in practice. With regard to the former principle, the more flexible standard of 'indirect contact' is often adopted. In Civil Judgment 2014-Tai-Shang 1544, the Supreme Court held that:
"when determining whether there is a fact of copyright infringement, the court should consider all relevant circumstances, and should make cautious investigations with respect to the two criteria for adjudicating copyright infringement: contact and substantive similarity. Contact includes direct contact and indirect contact; indirect contact refers to all events where, under normal circumstances, there is reasonable cause to believe that the person concerned has come into contact with the work. For example, the work may have already been released into the market, or can be purchased by the public at a store selling similar products such that it is easily accessible to the defendant; or the work may have received a certain amount of advertising exposure and has a reputation, or has other such circumstances. The criteria of substantive similarity include similarity in quantity and quality, and shall be objective criteria."
In view of the legislative spirit of protecting copyright, it is justified for judicial practice to consider indirect contact as a requirement for determining infringement. However, in determining the originality of a work, the question of whether the criteria of copyright infringement should be applied in kind remains up for discussion, as it could result in the denial of originality even when an author has completed a creation independently.
For further information on this topic please contact Hsiu-Ru Chien or Shih-I Wu at Lee and Li Attorneys at Law by telephone (+886 2 2715 3300) or email ([email protected] or [email protected]). The Lee and Li website can be accessed at www.leeandli.com.