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Intellectual Property and Commercial Court


2011 Min Zhu Su Zi No. 22

Decision No. 2011 Min Zhe Su Zi No. 22
Date December 13, 2011
Decision Highlight

Copying has an objective element and subjective element. Access is a subjective element for determining whether the copying was intentional. And, substantial similarity is an objective element. Determining substantial similarity should consider factors, such as quantitative similarity and qualitative similarity. So-called quantitative similarity means how much percentage the copied part has covered. It depends on the nature of the work. So, works about reality or facts often have more similar portions than works about science fictions, imagination, or creation do, and the probability of identity is very high. So-called qualitative similarity means whether the copied part is an important component. If it is an important component, then substantial similarity is established. Not because a user of the work has added some unimportant or irrelevant content, such user can be relieved from the liability of copyright infringement. As a result, the copied part which is the important part of other’s work, though covering a small portion of such work, constitutes substantial similarity. Compare the artistic work at dispute and the advertisement picture of feng yue tang to provide a result as known. In terms of quantitative similarity, both have reached a certain degree of being quite, proportionally identical or being similar. In view of qualitative similarity, the main parts of both all have a mother with a towel tied around the head wearing a kimono clothes and back-holding her baby. There are sight differences in colors and spot shapes in the clothes. So, in terms of the style, context, and layout, which are a way to express, the artistic work at dispute and the main, important component of the picture “wu mu zi shou bing” of feng yue tang‘s advertisement are the same, so both constitute substantial similarity. Therefore, the artistic work at dispute and the advertisement picture of feng yue tang constitute substantial similarity.


Copyright infringement, substantial similarity, qualitative similarity, quantitative similarity, access, copying

Relevant statutes Article 5, Paragraph 1, Subparagraph 4, and Article 84 of the Copyright Act
  • Release Date:2020-11-13
  • Update:2020-12-03