Under Article 13 of the Copyright Law, where a person's name or a pseudonym familiar to the public is represented in a normal way as the author on the original of a work, or on a published copy of the work, or in connection with a public release of a work, the person shall be presumed to be the author of the work. In spite of such "presumption" requirement, the Supreme Court rendered the 103-Tai-Shang-1839 Civil Decision of September 5, 2014 (hereinafter, the "Decision"), holding that the copyright enjoyed by an author is a private right. Like other general private right holders, an author is required to assume the burden of proof to substantiate the existence of his/her copyright. Therefore, to substantiate copyright, an author should retain materials relating to the creation process, publication and other right-related matters of the work as a method to prove his/her own rights. In case of any subsequent copyright dispute, relevant materials may be submitted to the court for determination.
According to the facts underlying this Decision, Itsuki Food Co., Ltd. is a Japanese company that asserts that it has long been well-known for selling noodle products in Japan using the name "Itsuki", and that it designed, based on the image of a traditional Japanese woman as depicted in the familiar Lullaby of Itsuki to the Japanese, the drawing of "a mother in kimono carrying her infant on her back with a towel wrapped around her head" (hereinafter, "Artistic Work in Exhibit 1") as shown in a drawing attached to the original decision (hereinafter, the "Attached Drawing"). The drawing was publicly displayed in as early as August 18 of the 48th year of the Showa Era (1973) (an advertisement was inserted in Nippon Shokuryo Shimbun to promote products), and a design patent (No. 424174) (hereinafter, the "Design Patent at Issue") was obtained in Japan on January 22, 1976. Therefore, the Japanese company is the copyright holder of the Artistic Work in Exhibit 1. Appellee Sing-lin Foods Co., Ltd. has the same scope of business as that of the above Japanese company, engages in technical exchanges with major Japanese companies each year and has reasonable opportunities and possibility to be exposed to the artistic work at issue. However, in pursuit of illegal gains, the Appellee has reproduced or adapted the artistic work at issue without a license from the Japanese company and created, by way of imitating such work, and registered 28 trademark devices (hereinafter, the "Trademark Devices at Issue") shown in a table attached to the original decision since November 17, 1982. It was requested that all trademark rights associated with the Trademark Devices at Issue be relinquished and damages be awarded.
In this Decision, the legal opinions of the original trial decision were affirmed and cited, and it was stated that even though the doctrine of creation is adopted for the Copyright Law in Taiwan and an author should enjoy copyright upon completion of his/her work, still the copyright owned by an author is a private right and, like other private right holders, an author is required to assume the burden of proof to substantiate the existence of his/her copyright. To substantiate copyright, therefore, a copyright holder should retain materials relating to the creation process, publication and other right-related matters as a method to substantiate his/her own right so that relevant materials can be submitted to the court for determination in case of any subsequent copyright dispute. Therefore, it is specifically stipulated under Article 13 of the Copyright Law that if a person's name or a pseudonym familiar to the public is represented in a normal way as the author on the original of a work, or on a published copy of the work, or in connection with a public release of a work, the person shall be presumed to be the author of the work to facilitate substantiation by authors or copyright holders Preserving all documents required in the course of creation as an evidentiary method in litigation includes, for example, all stages of sketch drawings created in the course of creating artistic works.
The Decision went on to support the opinions reflected in the original trial decision, stating that the burden of proof of a copyright holder involves the substantiation of at least the following matters in a lawsuit: (1) The identity of the author, which involves issues such as whether the author has creative capabilities, has ample or reasonably sufficient the time and support manpower to complete the work and whether the author can submit documents evidencing the creative process. (2) The completion time of the work, using the beginning time of the work to determine the basis of legal application and to determine if it is protected under the Copyright Law. (3) Independent creation without plagiarism to ascertain that the author was not exposed to prior works of others in the process of creation.
The Decision affirms the finding that the Appellee did not infringe copyright based on the above-mentioned opinions in the original trial decision. Although the Appellant may be presumed to be the author pursuant to Article 13, Paragraph 1 of the Copyright Law, the Appellant is still required to assume the burden of proof to substantiate that the artistic work at issue is copyrighted. Therefore, the original trial court was not unlawful in finding that the Appellant failed to prove that it is the author or copyright holder of the artistic work at issue after the Appellee had produced relevant evidence to reverse the author presumption and in rendering a decision against the Appellant. Based on the foregoing reasons, the Appellant's appeal was rejected.