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Intellectual Property and Commercial Court



Decision No. 2009-Min-Zhu-Su-2
Date February 27, 2009
Decision Highlight

The plaintiff’s pictures of “ctenocel-halides felis,” “blattella germanica” and “dampwood termites dinergate” possess originality. 1. Regarding the subject matters protected by copyright, Article 10bis of the Copyright Act provides, “Protection for copyright that has been obtained in accordance with this Act shall only extend to the expression of the work in question, and shall not extend to the work's underlying ideas, procedures, production processes, systems, methods of operation, concepts, principles, or discoveries.” Therefore, the subject matters protected by copyrights are limited to expression but not to thoughts and ideas. This is the “idea-expression dichotomy.” Additionally, thoughts and ideas are by nature public assets. If copyright protection extends to thoughts and ideas, other people’s freedom of creation would necessarily be curtailed. It would also controvene the legislative intent of the Copyright Act vested in Article 1, which provides “to protect the rights and interests of authors with respect to their works, to harmonize public interest of the society, and to promote the nation’s cultural development.” 2. A “work” means a creation that is within a literary, scientific, artistic, or other intellectual domain. (See Article 3, Paragraph 1, Subparagraph 1 of the Copyright Act.) The term “creation” means a creation of the human mind, and it encompasses the concepts of “originality” and “creativity.” “Originality” means that the author does not copy someone else’s work but independently creates his or her work. (See the Supreme Court criminal decision No. 2001-Tai-Shang-2945.) “Creativity” means that a creation should at least have a minimum degree of creativity, sufficient to show the character or uniqueness of the author. In addition, “originality” requires only that the work is independently created and not a reproduction or adaptation of another’s work. Even though the contents of a work are the same as or similar to another’s work, the same test for “originality” still applies, and such contents can be protected by the Copyright Act, whose test for originality is different from the novelty requirement under the Patent Act. (See the Supreme Court decision No. 2000-Tai-Shang-2787.) 3. A “photographic work” means a work which expresses thoughts and emotions by fixed images. The means of expression of photographic works include photographs, slides, or other production methods using photographs. (See Item 2, Subparagraph 5 of the Examples of Each Types of Works Under Paragraph 1, Article 5 of the Copyright Act.) To create a photographic work, an author should use mechanical or electrical equipment, and further use the physical and chemical reaction to reproduce the images on films (including plastic films or magnetic disks) or paper (e.g., polaroid films) so as to complete such work. If a photographer expresses what is on his or her mind as his or her thoughts with originality by during the photo-shooting process selecting subject matters, either persons or things, arranging the locations of those persons or things, utilizing any sorts of photographic techniques, and deciding sights, depth, quantity of light, shooting angle, shutter, focus, and so on, so as to express the author’s originality rather than just the mechanical reproduction of those real persons or things, then a photographic work created by such photographer is protected by the Copyright Act. The plaintiff claimed the copyrights of the pictures about “ctenocel-halides felis,” “blattella germanica” and “dampwood termites dinergate.” However, such claims were denied by the defendant, Huang Zeng, Yin-zhu, d.b.a. Yi-Ding-An Pest Control Co. Thus, the plaintiff bears the burden to prove the facts supporting his or her claim. Here, the plaintiff’s pictures about “ctenocel-halides felis,” “blattella germanica” and “dampwood termites dinergate” have notes on the dates and places of shooting, and the pictures were shot in real scenes in the natural environment. The topics were chosen by the characteristics of each bug. During the photographic shooting, the position and angle of a bug were arranged and adjusted. The view, depth, quantity of light, shooting angle, shutter, and focus of such shooting were specifically selected. In addition, the light shadows were processed, modified, combined or embodied by other art methods. A camera with special functions was utilized, and with such camera the photographer could rely on his or her knowledge and experiences to do the composition, shooting and the post-production of the works. The appearance of a bug was expressed through those complex processes so as to make the characteristics of the featured bug more prominent. Through the pictures, viewers could know the appearance of a bug and the original ideas that the photographer (the plaintiff) wanted to express. Moreover, a bug is not a static subject which can be controlled by the plaintiff in any way that he wants so as to simply use a camera to capture the images of such bug. The expression of the thoughts and emotions of the plaintiff should be recognized to be original and the works are protected by the Copyright Act.

Related Provision

Copyright Act: Article 3, Paragraph 1, Subparagraph 1; Article 10bisThe Examples of Each Types of Works Under Paragraph 1, Article 5 of the Copyright Act

  • Release Date:2020-11-13
  • Update:2020-12-03