The Copyright Act in Taiwan, stipulating that "the author of a work shall enjoy copyright upon completion of the work," adopts the principle that copyright is vested automatically. That is to say, an application or registration is not required to obtain a copyright; if a work is indeed the creation of an author and not the result of plagiarism, the work is deemed "original" and entitled to protection under the Copyright Act regardless of whether it resembles the work of another person. This is also a basic principle taken by the Supreme Court; see, for example, 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 there is plagiarism involved". The existence of a "similarity" or "resemblance" should be deemed immaterial to complying with the spirit of the Copyright Act to protect independent works. As to what level of proof is required to determine that "there is plagiarism involved," there seems to be no concerted position in either judicial practices or academic opinions. Under Civil Judgment 2015-Min-Zhu-Su No. 31 rendered by the Intellectual Property Court on November 6, 2015, a strict definition of originality was adopted.
The facts of this case are as follows: The Defendant claimed to be the author of a disputed artistic creation and had filed a criminal action against the Plaintiff and the Plaintiff's client, alleging copyright infringement regarding the disputed artistic creation. The Plaintiff therefore claimed the Intellectual Property Court to determine that there was no existing copyright for the disputed artistic creation. The Defendant argued that it held a copyright for the disputed artistic creation and provided evidence of a copyright registration certificate issued by the National Copyright Administration of the People's Republic of China. However, the Plaintiff submitted an online article published prior to the issuance of the aforementioned certificate claiming a similarity between the disputed artistic creation and the article's attached image and hence an absence of originality.
The Intellectual Property Court subsequently rendered the aforementioned judgment based on the following reasons: the disputed artistic creation, while complex in structural composition, largely resembled the aforesaid webpage image in both detailed analysis and comparison and whole appearance; and the occupations of the Defendant and the publisher of webpage article were in the industries of interior decoration and bedding products, which are considered similar or related types of business service. The Court determined that the disputed artistic creation had resulted from the Defendant's "coming into contact" with the webpage image and lacked originality; therefore, the work could not be protected under the Copyright Act.
In this judgment, the existence 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, "indirect contact," was adapted. Adjudication principles regarding copyright infringements, as interpreted in the Supreme Court civil judgment 2014-Tai-Shang No. 1544, "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 copyrights, it is justified for the judicial practice to consider the "indirect contact" as a requirement for determining infringements. However, in determining the originality of a work, the question of whether the criteria of copyright infringement should be applied in kind — which could result in the denial of originality even when an author has completed a creation independently — remains up for discussion.
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