2018.11.7
Sean Liu
The Supreme Court rendered the 106-Tai-Shang-2673 Civil Decision of November 7, 2018 (hereinafter, the “Decision”), holding that under Article 7, Paragraph 1 of the Copyright Law, compilation works of authorship which involve the selection and compilation of materials shall be protected as independent works. To determine if plagiarism involving substantial similarity is constituted, it is also necessary to consider the quality and quantity of exploitation. If the plagiarized portions are essential or important cores, infringement is still constituted. Therefore, the court may make one-by-one comparison of a textbook such as its overall compilation, catalogue and opening picture for each lesson and use its discretion to award damages based on the circumstances of copyright infringement.
According to the facts underlying this Decision, Company A asserted that the textbook at issue which it had completed by converting and compiling the electromagnetic publication of ELLIS’s English teaching software should be a compilation work under Article 7 of the Copyright Law and thus be protected under the Copyright Law. Company B subsequently plagiarized the textbook at issue and created the Ruby textbook in the same format and for the same purposes. Therefore, a complaint was filed to stop the publication and distribution of the Ruby textbooks, recall and destroy the Ruby textbooks from the market, and seek damages. In the original decision, the original trial court made one-by-one comparison of the contents of the Ruby textbook and the textbook at issue such as the overall compilation, catalogues and opening picture of each lesson and found that there were as many as 26 substantially similar pages. Although there were only 26 substantially similar pages, still the picture for each lesson will leave a stronger impression among the consumers when they read the text of each lesson and thus is important. In this regard, the plagiarized portion of the Ruby textbook was close to 10%. In addition, the textbook at issue was sold for NT$550 with an infringement period of around three years. Therefore, the original decision was rendered to recall and terminate the distribution of the textbooks, and damages in the amount of NT$500,000 were deemed appropriate. Dissatisfied, Company B appealed.
Article 7, Paragraph 1 of the Copyright Law provides: “A compilation work is a work formed by the creative selection and arrangement of materials, and shall be protected as an independent work.” This Decision pointed out: “A compilation work shall be a work which can convey a certain degree of creativity and authorship with respect to the selection and compilation of materials. With respect to the selection of materials, if the compiler makes an assessment, judgment and non-mechanic selection, usually the creativity can be conveyed.” With respect to the determination of substantial similarity in case of plagiarism, it was further pointed out in this Decision: “The substantial similarity of works requires neither exactly the same words or sentences nor substantial similarity in the entire text. Substantial similarity of contents which convey the originality of an author will suffice. If the plagiarized portions are important portions of the Plaintiff’s work, even if they only account for a small portion of the Plaintiff’s work, substantial similarity is also constituted. Therefore, to determine if plagiarism is constituted, it is also necessary to consider the quality and quantity of exploitation. Even if the plagiarized portions are not substantial, if the plagiarized portions are essential or important cores, infringement is still constituted.”
It was concluded in this Decision that since the determination unfavorable to the Appellant by the original trial court was not legally erroneous when it investigated the litigation materials by making one-by-one comparison of the contents of the Ruby textbook and the textbook at issue and awarded the damages based on the circumstances, Company B’s appeal was rejected.