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Intellectual Property and Commercial Court


2014 Xing Zhi Shang Yi Zi No. 19

Decision No. 2014 Xing Zhi Shang Yi No. 19
Date May 15, 2014
Decision Highlight

1.Copyright Act Article 65 Paragraph 2 stipulates that: “In determining whether the exploitation of a work complies with the provisions of Articles 44 to 63, or other conditions of fair use, all circumstances shall be taken into account, and in particular the following facts shall be noted as the basis for determination: 1. the purposes and nature of the exploitation, including whether such exploitation is of a commercial nature or is for nonprofit educational purposes; 2. he nature of the work; 3. The amount and substantiality of the portion exploited in relation to the work as a whole; 4. Effect of the exploitation on the work's current and potential market value.” This article is an independent general clause of fair use. The court can separately take the standard of this paragraph into account in determining that the work constitutes fair use, proclaiming the 4 standards in writing, and referring to other standards which are not listed in this paragraph. In determining the fair use of a work, instead of using dichotomy of commercial profit and non-commercial profit, the core concept shall focus on whether using others’ works helps balancing different interests for the common good of society and promoting the development of national culture. Therefore, as stipulated in Article 65 Paragraph 2, the so-called “all circumstances” means facts other than the aforementioned four basic factors, which includes whether the disputed use is out of good or bad faith; whether the action is appropriate or not; whether the person exploiting a work attempts to sell his work through the strong connection between his work and the work being exploited instead of the imagination and the originality of his work; social welfare, public domain, and nature and purpose of copyright, etc. One should not determine whether a work is of fair use or not with a sole basis. Rather, one should base on the public interest of humans’ intellectual culture property and the type of the exploited work to determine the patterns and contents of the work.

2.Moreover, exploiting others’ works in an unreasonable manner without authorization constitutes infringement on economic right in the work. Infringement exists as long as there is actual use, regardless of whether the exploitation has diminished the commercial value of the work or has disabled the economic right holder from actively acquiring the interest that can be derived from the work.

3.The plaintiff’s work, which was reproduced and transmitted publicly by the defendant through his blog, is not necessarily related to the defendant’s medical profession. Just as what the defendant said in the interrogation, he wanted to be recognized by others through his blog. Therefore, what he has done is for enriching the content of his blog and thus increasing the CTR (click through rate) of the webpage. This purpose can be proved by other non-medical articles which include categories such as “dietitians”, “beauty”, “soul”, and “immunity”. There is no comment or reflection on the work, which was reproduced and transmitted publicly by the defendant. Also, instead of just citing part of the work, the defendant reproduced and transmitted publicly the whole work, enabling browsers of the webpage to view the full content of the work. Consequently, the defendant’s conduct does not belong to the fair use of a work; his previous arguments fail to relieve himself of responsibility. In a word, the defendant’s conduct has constituted infringement on copyright.


Fair Use of a Work

Relevant statutes Article 65 Paragraph 1 and 2 of the Copyright Act、Article 91 Paragraph 4 of the Copyright Act amended and published on 2014, Jan, 22
  • Release Date:2020-11-13
  • Update:2020-12-03