The Intellectual Property Court rendered the 107-Xing-Zhi-Shang-Su-16 of December 27, 2018 (hereinafter, the “Decision”), holding that attention should be paid to the overall feel of the entire works in order to determine if artistic or aesthetic works such as artistic works are plagiarized, and this should be based on the reactions or impressions of the general rational mass audience and is not necessitated by the examination or determination by professionals.
According to the facts underlying this Decision, the Defendant was found guilty of infringing the copyright of another person by reproductive means without authorization with a sales intent in the first instance decision. The Defendant appealed, alleging that he had adopted the Plaintiff’s “The Mouse” series of animal character cartoon works by imitative rather than reproductive means and requesting the reversal of the original decision and a lighter sentence.
According to the Decision, to determine whether artistic or aesthetic works such as “artistic works” are plagiarized, if detailed comparison is conducted by using an analytic and deconstructive method, it is often difficult and unfair to apply such method. Therefore, when making a qualitative consideration, it is especially important to pay attention to the “overall concepts and feel” between the works. Now that the “overall feel” is pertinent, it is not appropriate to separate and deconstruct all details by splitting the two works at issue. In addition, the similarity between works should be determined based on the reactions or impressions of the general rational mass audience and does not require a determination through examination by individuals with expertise and experience.
It was further pointed out in this Decision that the Defendant’s “The Mouse” series of images were created by the same approach as that for the Complainant’s “The Moment” images. Therefore, the Defendant’s conscientious effort to create separate works could not be felt. Instead, the Defendant merely regenerated the contents of the original works by reproductive means such as printing or xerographic duplication with the same means of expression. In addition, the Defendant admitted during the investigation that he had created the works by referencing the Complainant’s works. Therefore, the Defendant’s creation of the “The Mouse” series images obviously meets the criteria for “contact” and “substantial similarity” and failed to obtain the Complainant’s approval. Hence, the Defendant did engage in an act of illegal reproduction under the Copyright Law.
However, it was considered in this Decision that the Defendant and the Complainant had indeed had cooperation relations. However, the relations between the parties changed and the Complainant discontinued the cooperation due to the Defendant’s failure to continuously negotiate a license. Although the Defendant expressed his willingness to settle with the Complainant several times, still the settlement could hardly be reached due to enmity between the parties. In addition, the Defendant was also upset since he had also invested in the cooperation project between the parties, and the period of the Defendant’s infringement was not too long and the infringing works had been pulled off. After such factors were considered, it was held in this Decision that the original trial court’s sentencing of imprisonment for eight months simply on the ground that the Defendant had not settled with the Complainant obviously did not meet the principle of proportionality and the principle of punishment proportionate to crimes. Therefore, a sentence of imprisonment for six months was imposed on a discretionary basis with an instruction to commute the prison term to a fine by NT$2000 per day.