Originality and creativity in the reporting of facts of a news report is protected under the Copyright Law(Taiwan)

Ankwei Chen

The Intellectual Property Office issued the Email-1050715 Circular on July 15, 2016 (hereinafter, the “Circular”) stating that originality and creativity in the reporting of facts of a news report is protected under the Copyright Law.

This Circular states that while a work that consists purely of a reporting of facts in a news report is not protectable, and anyone may use such work without violating the Copyright Law, if the news report also contains the opinion, analysis or other similar commentary by the author, or if the report consists of pictures and photographs, such report is protectable under the Copyright Law to the extent they are original and creative; use of such report will require the permission of the copyright holder unless the requirements of fair use are present.

This Circular further points out that since reposting of articles involves ÒreproductionÓ and Òpublic transmissionÓ, the fair use rules under Article 61 of the Copyright Act may not apply if the reposted article concerns health, medicine and healthcare instead of politics, economics or other current events, and permission or licensing from the author is required. In contrast, the sharing of news through Òcopying of URLsÓ so that another may simply click it to access such content do not in principle involve ÒreproductionÓ and Òpublic transmissionÓ, hence no infringement of copyright. However, if one knowingly provides to the public URLs to websites whose contents are infringing, it may constitute aiding and abetting infringement of the copyright holderÕs right of public transmission and thus result in joint and several liability. As for printing news content on advertisements, since ÒreproductionÓ and Òpublic transmissionÓ is present, permission or licensing from the author is required unless fair use applies. .

Regarding the use of citations under Article 52 of the Copyright Act, since reproduction of anotherÕs work is still present even if source is indicated, in principle the permission of the author is required. However, if content is extracted, summarized or reproduced for oneÕs own reporting, criticism, education, research or other appropriate purposes, reasonable use of such content through citations in accordance with Article 64 is permissible as long as such use is intended for that individualÕs own works; if fair use is not absent, citations would not save such reproduction from being considered infringing, and permission from the author is still recommended before such use.

In the end, since copyright is a private right, whether a use is fair or infringing in a dispute will still require a judicial authorityÕs determination based on the facts of the particular case.