What kind of creative content constitutes a copyrighted work under the Copyright Act in Taiwan (the “Copyright Act”[1])?  What will a Taiwan court look for in determining a copyright infringement by appropriating from a copyrighted work?  What factors will be considered by a Taiwan court in determining the “fair use” of a copyrighted work, allowing the exploitation of a copyrighted work without the copyright owner’s permission?  Can anyone incorporate a copyrighted work into his creative work without the copyright owner’s permission?  These questions not only run to the heart of the copyright jurisprudence in Taiwan but also deserve the attention of copyright owners and creative content makers. 
 
A recent case handed down by the Intellectual Property Court in Taiwan (the “TWIP Court”), which is the TWIP Court Civil Judgment 108 Min Chu Su No. 74 (“108 Min Chu Shu 74”),[2] happens to address those questions above.  108 Min Chu Shu 74 is worth a read for copyright owners and creative content makers because this case (1) covers some frequently seen issues and arguments in copyright infringement cases filed in Taiwan, and (2) presents the views of Taiwan courts about the aforesaid issues.
 
I.  108 Min Chu Shu 74
 
In 108 Min Chu Shu 74, the plaintiff (the “Plaintiff”) is a member of the National Guild of Hypnotists (the “NGH”) and a professional hypnotist who wrote a book about hypnosis (the “Book”).[3]  The Plaintiff created some printouts (the “Printout”) for his lecturing courses in the NGH training programs (the “Plaintiff’s NGH Courses”).[4]  In 2011, the defendant (the “Defendant”) attended one of the Plaintiff’s NGH Courses and obtained copies of the Printout.[5]  In 2017, the Plaintiff became aware of that (1) the Defendant replicated a substantial portion of the Printout in a hypnosis course manual written by the Defendant (the “Manual”) for some hypnosis courses and workshops offered by the Defendant at a college (the “Defendant’s College Courses”); and (2) without the Plaintiff’s permission and also without properly attributing to the Plaintiff, the Defendant replicated and adapted some parts of the Book into a hypnosis training video marked with the Defendant’s name (the “Video”), and uploaded the Video to Youtube.[6]  The Plaintiff sued the Defendant for copyright infringement, alleging that the Defendant violated the reproduction right, the distribution right, and the adaptation right of the Plaintiff.[7]  The Defendant raised various arguments to defend himself during the trial, but the TWIP Court found in favor of the Plaintiff in the end.[8]  The following summarizes the arguments of the Plaintiff and the Defendant, as well as the TWIP Court’s findings, on some selected issues hotly debated in the 108 Min Chu Shu 74 case.
 
A.  Copyrighted Works
 
In Taiwan, a creation “within a literary, scientific, artistic, or other intellectual domain” is a “work” under the Copyright Act.[9]  For instance, “literary works,” “audiovisual works,” or “computer programs.”[10]  The Intellectual Property Office in Taiwan (the “TIPO”) has long held the view that a copyrighted “work” under the Copyright Act must meet the requirements of “originality” and “creativity.”[11]  A work meets the originality requirement as long as the work is created by the author and not a result of copying the creation(s) of someone else.[12]  The creativity requirement is met when a work possesses at least some minimal degree of creativity.[13]  The question of whether the work in dispute meets the requisite level of creativity to be considered for copyright protection should be determined on a case-by-case basis and depends on the facts and circumstance of each case.[14]  Taiwan courts also have adopted the same view.[15]
 
In copyright infringement lawsuits, there is no surprise to see that a defendant argues that the content in dispute is not a copyrighted work protected under the Copyright Act.  The Defendant raised the same argument in 108 Min Chu Shu 74, too.[16]  The Defendant did not deny that the Plaintiff is the author of the Printout.[17]  However, the Defendant argued that the Printout lacks originality and is not a copyrighted work protected under the Copyright Act because (1) a substantial portion of the Printout is identical or substantially similar to the content of an NGH-published hypnosis training material book written by someone else (the “Training Material”); and (2) the Plaintiff’s statement in a Facebook posted by the Plaintiff (the “Facebook Post”), where the Plaintiff acknowledged that the Plaintiff improperly replicated some portions of the Training Material in his Printout, reveals the Plaintiff’s confession of plagiarizing and reproducing the Training Material.[18] 
 
In 108 Min Chu Shu 74, the TWIP Court held that the Printout satisfies the originality and creativity requirements, and is thus a copyrighted work protected under the Copyright Act.[19]  After reviewing and comparing the order of chapters, numbering in the captions, text, wording, and content of the Printout and the Training Material, the TWIP Court found that the Plaintiff’s creation of the Printout is not simply copying the text of the Training Material without any original input of the Plaintiff.[20]  Particularly, the TWIP Court points out some parts of the Printout as examples indicating that the Plaintiff incorporated his personal experience, views, and opinions into his creation of the Printout.[21]  The fact that some parts of the Printout and the Training Material are identical or similar does not undoubtedly conclude that the Printout is literal copying of the Training Material’s expression without any originality or creativity.[22]  Moreover, the TWIP Court does not read the Facebook Post as the Plaintiff’s confession of plagiarizing and reproducing the Training Material.[23]  The TWIP Court notes that improper quotation and plagiarism are not the same.[24]
 
B.  Copyright Infringement by Unauthorized Reproduction
 
Under the Copyright Act, an act of reproducing a copyrighted work without the copyright owner’s permission constitutes an infringement of copyright and is subject to both criminal penalties[25] and civil liabilities.[26]  According to the Copyright Act, an act of “reproduction” refers to (1) reproducing “directly, indirectly, permanently, or temporarily a work by means of printing, reprography, sound recording, video recording, photography, handwritten notes, or otherwise;” (2) “the sound recording or video recording of scripts, musical works, or works of similar nature during their performance or broadcast;” or (3) “the construction of an architectural structure based on architectural plans or models.”[27]  
 
In determining a copyright infringement by unauthorized reproduction of a copyrighted work, courts in Taiwan will look into all facts and circumstances in each case to see (1) whether a defendant had “access” to the plaintiff’s work; and (2) whether the plaintiff’s work and the defendant’s work are “substantially similar.”[28]  The “access” element requires fact-based showings of that the defendant had a suitable opportunity to directly or indirectly access, contact, or witness the plaintiff’s work.[29]  On the other hand, the “substantial similarity” element is met if the plaintiff’s work and the defendant’s work are substantially similar in both quantitative and qualitative aspects.[30]  When applying the substantial similarity test, a Taiwan court will assess the quantity and quality of the portion that the defendant’s work appropriated from the plaintiff’s work.[31]  The substantial similarity element does not require that the plaintiff’s work and the defendant’s work must be exactly identical word by word.[32]  Nevertheless, an appropriation of a de minimis portion of a copyrighted work will constitute a copyright infringement as long as the said de minimis portion is a critical part central to the copyrighted work.[33]  Furthermore, in literary copyright infringement cases, Taiwan courts will take into consideration the manner of reproduction and exploitation in light of social norms and objective standards.[34]
 
In 108 Min Chu Shu 74, the Plaintiff alleged that the Defendant infringed the Plaintiff’s copyrighted work (the Printout) and violated the Plaintiff’s reproduction right for the reason that (1) the Defendant had access to the Printout as the Defendant was an attendee of one of the Plaintiff’s NGH Courses; and (2) a substantial portion of the Manual is substantially similar to the Printout in quantitative and qualitative terms.[35]  Instead of arguing on the aforesaid points mentioned by the Plaintiff, the Defendant simply contended that the Manual was a copyrighted work protected under the Copyright Act because the Manual was an original work written by the Defendant with creativity expressing the Defendant’s unique characteristics.[36]
 
The TWIP Court sustained the Plaintiff’s argument that the Defendant violated the Plaintiff’s reproduction right by means of reproducing a substantial portion of the Printout without the Plaintiff’s permission.[37]  According to the TWIP Court, the “access” element was met because the Defendant did attend one of the Plaintiff’s NGH Courses and had access to the Printout.[38]  Moreover, the TWIP Court held that the Manual is substantially similar to the Printout after evaluating (1) how much did the Manual copy the Printout (i.e., a quantitative analysis); and (2) whether the character/quality of expression between the Manual and the Printout is substantially similar (i.e., a qualitative analysis).[39]  The TWIP Court found that the Manual and the Printout are substantially similar in quantity on the grounds that at least 83 pages (amounted to forty-seven point one percent (47.1%)) of the content of the Manual was nearly identical to the content of the Printout.[40]  The TWIP Court also found that the quality threshold of the substantial similarity test is met because the Manual fully copied (without any additional comments or criticism from the Defendant) the hypnosis process written in the Printout, which, in the opinion of the TWIP Court, is a critical part central to the Printout.[41]  The defense raised by the Defendant, contending that the Manual was an original work with creativity written by the Defendant, did not convince the TWIP Court since a substantial portion the Manual appropriated from the Printout.[42]  The TWIP Court further noted that “the inquiry of whether the rest of the Manual (which is not copied from the Printout) is original and creative enough to be a copyrighted work protected under the Copyright Act” will not exempt the defendant from the liability of copyright infringement by unauthorized reproduction.[43]
 
C.  Fair Use
 
The doctrine of fair use, which permits one to exploit a copyrighted work without the copyright owner’s permission, is a famous and important limitation to the exclusive rights of copyright owners in their copyrighted works granted under applicable laws.[44]  The Copyright Act has set forth a variety of statutory exceptions for the fair use of copyrighted works,[45] including but not limited to the reproduction of a copyrighted work “for the purpose of teaching in schools.”[46]  Under the Copyright Act, the fair use of a copyrighted work does not constitute a violation of the economic right of the copyright owner (e.g., the author) of the said copyrighted work.[47]  However, the Copyright Act requires one who exploits a copyrighted work of another one pursuant to one of those statutory fair use exceptions should attribute (“clearly indicate”) the source of the copyrighted work, including the name of the author, “in a reasonable manner.”[48]  In determining whether an exploitation of a copyrighted work constitutes one of the statutory fair use exceptions, a Taiwan court will, as required by the Copyright Act, take all circumstances into consideration and particularly consider the following factors: (1) “[t]he purposes and nature of the exploitation, including whether such exploitation is of a commercial nature or is for nonprofit educational purposes;” (2) “[t]he nature of the [copyrighted] work;” “(3) [t]he amount and substantiality of the portion exploited in relation to the [copyrighted] work as a whole;” and “(4) the “[e]ffect of the exploitation on the [the potential market for and the current value of the copyrighted work].” [49]  Taiwan courts have adopted this approach for a long time.[50]  If there is an agreement between a copyright owner organization and an exploiter organization on “the scope of the fair use of a [copyrighted] work,” a Taiwan court will take that agreement into consideration as well.[51]
 
Fair use is one of the common defenses likely raised by a defendant in a copyright infringement case.  We also see that in the 108 Min Chu Shu 74 case.  In 108 Min Chu Shu 74, the Defendant argued that the fair use doctrine should apply to his case because the Manual was created and used for the teaching of the Defendant’s College Courses rather than for a commercial or business purpose.[52]  The Defendant also maintained that the cover page and the bottom page of the Manual clearly indicate that “the Manual was used for the courses offered at the college,” “part of the Manual may contain copyrighted works of other authors,” and “please do not distribute or publish [the Manual].”[53]
 
The TWIP Court declined the Defendant’s argument above and found that the Defendant’s exploitation of the Printout was not a fair use of the Printout.[54]  The TWIP Court noted that the Defendant failed to comply with the attribution requirement under the Copyright Act because the Manual did not list the Printout as one of the references or indicate the name of the Plaintiff.[55]   Moreover, the TWIP Court’s reasoning below, based the fair use assessment conducted by the TWIP Court, supports the TWIP Court’s finding that the Defendant’s exploitation of the Printout was not a fair use of the Printout:
(1) Purpose and Nature of the Exploitation
The fact that the Manual was a teaching material for the Defendant’s College Courses does tell that the Manual was used for the purpose of teaching in schools.[56]  Nonetheless, this does not mean that the Manual was not used for business or commercial purposes, especially given that the Defendant’s College Courses are non-credit courses requiring all enrollees to pay course fees out of their own pocket.[57]
(2) Nature of the Copyrighted Work
In the opinion of the TWIP Court, the Printout is a professional work written for the Plaintiff’s NGH Courses to train hypnotists and contains contents showing the techniques to induce hypnosis.[58]  On the other hand, the Manual is another professional work in the field of hypnosis covering the induction and therapy of hypnosis.[59]  Part of the Manual’s content covering hypnosis (1) is identical to part of the Printout, and (2) does not distinguish the Manual from the Printout much in terms of meaning or function.[60]  The Manual may serve as a substitute to the Printout and vice versa.[61]
(3) Amount and Substantiality of the Exploited Portion
As noted in previous paragraphs, the TWIP Court found that the Manual is substantially similar to the Printout in terms of quantity and quality.[62]
(4) Effect of the Exploitation on the Potential Market for and Current Value of the Copyrighted Work
In addition to finding that the Manual and the Printout are both professional works in the field of hypnosis, the TWIP Court looked into and compared the Defendant’s College Courses and the Plaintiff’s NGH Courses.[63]  The TWIP Court found that the Defendant’s College Courses and the Plaintiff’s NGH Courses: (1) share similar content; (2) both require all enrollees to pay course fees; and (3) are competing against each other in taking enrollees.[64]  Given the foregoing, the TWIP Court held that the Defendant’s use of the Manual in the Defendant’s College Courses might affect the potential market for and the current value of the Printout.[65]  One who has obtained course materials after taking the Defendant’s College Courses may feel no need to take the Plaintiff’s NGH Courses.[66]
 
D.  Adaptation
 
Under the Copyright Act, an act of “adaptation” refers to “creat[ing] another work based upon a pre-existing [copyrighted] work by translation, musical arrangement, revision, filming, or other means.”[67]  In Taiwan, a work created by “adapt[ing] from one or more pre-existing [copyrighted] works” is a “derivative work” under the Copyright Act and is “protected as an independent [copyrighted] work.”[68]  Protecting a derivative work does not mean any copyright in a pre-existing copyrighted work will be undermined or affected.[69]  Rather, the right to adapt, or to permit someone else to adapt, a copyrighted work into a derivative work is an exclusive right of the copyright owner of that copyrighted work.[70]  Accordingly, one who intends to adapt the content of a copyrighted work into a derivative work should seek permission from the copyright owner of that copyrighted work.[71]  One who makes an adaptation of a copyrighted work without the copyright owner’s permission will likely violate the adaptation right of the copyright owner.[72]
 
In 108 Min Chu Shu 74, both the Plaintiff and the Defendant had no dispute over the fact that the Plaintiff is the copyright owner of the Book.[73]  The Plaintiff alleged that the Defendant infringed the Plaintiff’s adaptation right for the reason that (1) the Defendant unauthorizedly replicated and adapted some parts of hypnosis induction scripts from the Book into the Video; (2) the Defendant uploaded the Video to Youtube for a commercial purpose; and (3) the Defendant failed to clearly indicate the source of the copyrighted work in a reasonable manner.[74]  During the trial, the Plaintiff presented a word-by-word transcript, which recorded part of the Video’s content identical to the said hypnosis induction scripts in the Book, as evidence supporting the Plaintiff’s allegation.[75]  In defense, the Defendant argued that he had no intention to infringe the Plaintiff’s copyright because (1) the Video was created and uploaded to Youtube for the promotion of the teaching and research of hypnosis; (2) the Defendant did cite the Book in the Manual as the source of the said hypnosis induction scripts; and (3) the Defendant listed the Book as one of the references in the course outlines of the Defendant’s College Courses.[76]
 
The TWIP Court rejected the Defendant’s argument and found that the Defendant infringed the Plaintiff’s copyright.[77]  In the opinion of the TWIP Court, the word-by-word transcript presented by the Plaintiff during the trial proves that the Defendant did adapt the Plaintiff’s literary works into the Video.[78]  There was no dispute between the Plaintiff and the Defendant over the said transcript.[79]  Since the Defendant’s aforesaid adaptation of the Plaintiff’s copyrighted work received no permission from the Plaintiff, the TWIP Court held that the Defendant infringed the Plaintiff’s adaptation right.[80]  In addition, the TWIP Court found that the Defendant did not comply with the attribution requirement under the Copyright Act.[81]  According to the TWIP Court, what the Defendant did (including citing the Book in the Manual and listing the Book as one of the references in the course outlines of the Defendant’s College Courses) was not a reasonable way to clearly indicate the Book as the source of the said hypnosis induction scripts because no person can tell from the Video that the said hypnosis induction scripts came from the Book.[82]
 
II.  Conclusion
 
108 Min Chu Shu 74 is a good read for copyright owners and creative content makers because this decision walks through some commonly raised issues in copyright infringement cases in Taiwan and presents some long-established views upheld by Taiwan courts on these commonly raised issues.  108 Min Chu Shu 74 helps a creative content maker to figure out that (1) under what circumstances will a content created by him be considered a copyrighted work protected under the Copyright Act; (2) under what circumstances would he be allowed to exploit a copyrighted work without the copyright owner’s permission; and (3) whether he infringes someone’s copyright if he adapts some portions of another work into a video created by him.  Likewise, Min Chu Shu 74 helps a copyright owner to grasp the ideas of (1) what approaches do Taiwan courts adopt in determining a copyright infringement by unauthorized reproduction; (2) what factors will Taiwan courts take into consideration in determining the fair use of a copyrighted work; and (3) whether someone infringes his copyright if he finds out a video online incorporating some portions of his copyrighted work in the said video without his permission. 
 
Copyright owners and creative content makers can draw some valuable lessons from the case of 108 Min Chu Shu 74 as follows:
 
A.  Copyrighted Works
 
1.  In Taiwan, a content originally created by an author with a least some minimal degree of creativity is a copyrighted work protected under the Copyright Act.  This is also the view upheld by the TIPO[83] and Taiwan courts.[84]  
 
2.  The issue of “whether the plaintiff’s work is a copyrighted work” is likely one of the first battlegrounds between the plaintiff and the defendant in a copyright infringement lawsuit.[85]  We also see the Defendant raised and argued this issue in 108 Min Chu Shu 74.[86]  A copyright owner should expect to encounter such a challenge in a copyright infringement lawsuit in Taiwan.  On the other hand, challenging the copyrightability of the plaintiff’s work is one of the available arguments for the consideration of a creative content maker who is sued for copyright infringement as this is an argument frequently raised by the defendants in copyright infringement lawsuits in Taiwan.
 
B.  Copyright Infringement by Unauthorized Reproduction
 
1.  In determining a copyright infringement by unauthorized reproduction, Taiwan courts will look for fact-based showings of that (1) the defendant had “access” to the plaintiff’s work; and (2) the plaintiff’s work and the defendant’s work are “substantially similar” in terms of quantity and quality.[87]  Taiwan courts will assess the quantity and quality of the portion that the defendant’s work appropriated from the plaintiff’s work when applying the substantial similarity test.[88]  Under the substantial similarity test, it is not necessary that the defendant’s work is exactly identical to the plaintiff’s work word by word.[89]  An appropriation of a de minimis portion of a copyrighted work will constitute a copyright infringement when the said de minimis portion is a critical part central to the copyrighted work.[90]  
 
2.  The proving of the elements of “access” and “substantial similarity” are challenges facing the plaintiff (e.g., a copyright owner) in a lawsuit against an alleged perpetrator for copyright infringement by unauthorized reproduction.  On the other hand, a defendant (e.g., a creative content maker) who is sued for copyright infringement by unauthorized reproduction may consider raising arguments aiming to strike down either of the aforesaid elements.  Without these two thresholds being met, a Taiwan court will not likely sustain the plaintiff’s copyright infringement allegations. 
 
3.  In a lawsuit copyright infringement by unauthorized reproduction, the plaintiff (e.g., a copyright owner) and the defendant (e.g., a creative content maker) should feel no surprise to see a text-by-text comparison between the plaintiff’s work and the defendant’s work.  A text comparison analysis may help the plaintiff to build his allegations or help the defendant to defend himself.  A text comparison analysis may also provide a basis to support the findings of the courts.
 
C.  Fair Use
 
1.  A copyright owner’s exclusive right in his copyrighted work may be subject to the fair use doctrine, which allows someone else to exploit a copyrighted work without the permission of the copyright owner.[91]  There are various statutory fair use exceptions set forth in the Copyright Act.[92]   The fair use of a copyrighted work will not be taken as violating the economic right of the copyright owner.[93]  Under the Copyright Act, one who exploits a copyrighted work of another one based on a statutory fair use exception should attribute (clearly indicate) the source of the copyrighted work, including the name of the author, in a reasonable manner.[94] 
 
2.  In determining whether an exploitation of a copyrighted work falls within the Copyright Act’s statutory fair use exceptions, Taiwan courts will take all circumstances into consideration and will particularly consider the following factors: (1) the purpose and nature of the exploitation; (2) the nature of the copyrighted work; (3) the amount and substantiality of the exploited portion; and (4) the effect of the exploitation on the potential market for and the current value of the copyrighted work.[95]  
 
3.  In copyright infringement lawsuits, a plaintiff (e.g., a copyright owner) should not be surprised to see that a defendant raises the fair use defense.  On the other hand, a creative content maker who is sued for copyright infringement may consider raising a fair use defense to defend himself from the accusation of copyright infringement.
 
D.  Adaptation
 
1.  Creating a derivative work based on another pre-existing copyrighted work by translation, musical arrangement, revision, filming, or other means constitutes an adaptation of the pre-existing copyrighted work.[96]  Under the Copyright Act, the right to adapt, or to permit someone else to adapt, a copyrighted work into a derivative work belongs to the author (the copyright owner) of a copyrighted work.[97] 
 
2.  An act by a creative content maker to adapt a copyrighted work into a derivative work without the copyright owner’s permission may expose the creative content maker to liability that the creative content maker may not have intended.  As we see in 108 Min Chu Shu 74, one who adapts some parts of a copyrighted work into his video without the permission of the copyright owner violates the copyright owner’s adaptation right.[98]  This liability will not be exempted even if the said derivative work is protected as an independent copyrighted work.
 
3.  One who is permitted to adapt a copyrighted work into a derivative work must attribute the source of the copyrighted work, including the name of the author, on the derivative work itself.  As we see in 108 Min Chu Shu 74, the TWIP Court does not consider indicating the source elsewhere (other than on the derivative work itself) is a reasonable way to attribute the source as required by the Copyright Act.[99] 
 
4.  Before adapting any content into another work, a creative content maker should (1) obtain the copyright owner’s permission (if such content is a copyrighted work), or (2) find out whether such content is available for free exploitation.  Adapting any content into another work without taking precautions is not a wise move and might subject a creative content maker to copyright infringement consequences that he did not anticipate.  A creative content maker should refrain from exploiting any content without knowing whether such content is available for free exploitation. 
 
 

This article, including the information contained herein, has been prepared only for educational and general information purposes to contribute to the understanding of the subject matters addressed herein.  This article does not and is not intended to constitute, offer, or convey individual legal advice, legal opinion, or any other professional advice on any subject matters covered herein.  Please obtain specific legal advice before acting on any matters discussed herein.  While the author makes every attempt to ensure that the information enclosed herein is accurate, the author disclaims any liability for any omissions or errors that may be contained in this article.