According to Article 3-1(1) of Copyright Act in Taiwan, a work must be original to qualify for copyright protection. To be more specific, a copyrighted work should meet the following two requirements: the work should be (1) independently created by the author and (2) should possess at least some minimum degree of creativity.

Whether the creativity of photographic works, when created mainly through the mechanical process of cameras and photosensitive material, may meet the above creativity requirement was uncertain under the past court practices in Taiwan and should be determined on a case-by-case basis. For example, some court decisions held that product photographs on catalogs only faithfully reflects the appearance of the product taken; therefore these types of photographs may not be creative enough to afford copyright protection. In a recent copyright infringement case, the Intellectual Property Court of Taiwan provided a good example of how to approach this issue.

The complainant in this case was a company that manufactured mechanical components. The defendant was a sales associate of the complainant. After the defendant left the complaint, he uploaded the product photographs of the complainant's catalog to a website of a third party company for the purpose of marketing the third party company's products. The complainant found out about that its product photographs were uploaded on the third party's website and subsequently launched a copyright infringement complaint to the public prosecutor.

The defendant admitted that he uploaded the complainant's product photographs on the third party company's website. However, he pointed out that the photographs were found on the internet and denied copyright infringement. The defendant further argued that there were many similar product photographs on the internet, therefore the product photographs were not creative enough to be protected under Copyright Act.

In this regard, the Intellectual Property Court firstly clarified that, the Copyright Act requires only some minimal level of creativity. In the past, whether a photograph was creative enough to be protected under the Copyright Act depended on whether the author used any "photographic techniques" such as the selection of aperture, depth of field, lighting or shutter. Nowadays, with the advance of technology, taking photographs is a lot easier. Whether a photograph may be copyrighted should be based on whether the photograph possesses some "creative sparks" rather than the "photographic techniques" of the author. The Intellectual Property Court further explained that, if creative thought had taken place in the mind of the photographer, and the photographer made some creative choices such as the theme, the subject or composition of the photograph, the photograph should be protected under the Copyright Act.

After reviewing the photographs of the complainant and the materials from its creative process, the Intellectual Property Court found that the product photographs should be protected under the Copyright Act given that the complainant had made a number of creative choices such as the lighting, the angle and the three-dimensional representation of the product taken. Even though the photographs at issue were only still life photographs of the products, the photographs had met the requirement of creativity under the Copyright Act.