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Product Description and Images Are Copyrightable

Esther Lin

The Intellectual Property Court in Taiwan (the "IPC") delivered civil judgment 2017-Min-Zhu-Su-No.13 on June 26th, 2017 concerning a copyright infringement civil case. In the judgment, the IPC ruled that advertising content and product images shall be considered as having creativity as long as the minimum legal requirement for creativity is met.


Plaintiff A claimed that the Defendant B's minor daughter C had, without any prior consent from Plaintiff A, reproduced the advertising content and product images posted by A on a social network group and publicly transmitted such content and images to the social network group created by C, and thereby infringed upon A's copyright. Therefore, Plaintiff A claimed against Defendants B and C for damage in an amount of NT$550,000.


The IPC revealed in the foresaid judgment that the element of "creativity" required by the originality of a work is aimed merely at maintaining the minimum uniqueness of the work so as to distinguish it from other works. The threshold for creativity is low.  The IPC referred to the opinion of the Supreme Court of the United States concerning the case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 000 (0000). According to the Supreme Court of the United States, the requisite level of creativity is extremely low; even a minor degree of creativity will suffice.


In this case, the IPC holds that even though the content of the advertisement in dispute relates to product information or conditions of sale, which usually tend to be similar for sellers of identical product, as a whole, since the advertisement in dispute includes a considerable amount of text, and although such text involves little creativity, not much is required since the legal threshold for creativity is extremely low.  Therefore, the advertisement in dispute has creativity.  Nevertheless, the IPC also indicated that, under such circumstance, the advertisement in dispute should enjoy a relatively small scope of copyright protection under Taiwan's Copyright Act, and any slight change or difference would make the altered content fall out of the original scope of copyright protection when identical product information and conditions of sale are described.


With respect to the images in dispute, the IPC believed that it is easy to create works presenting similar visual effects by using technical devices like a camera to take photos of physical items as long as such photos are taken from the same angles. Therefore, photos with similar visual effects shall be protected under copyright as long as their photographers do not access and copy others' works because similar visual effects cannot be used as a standard to deny the creativity of such photos. The IPC thereby determined that the images in dispute, though categorized as photos of the product, satisfy the legal requirement for creativity.


When reproducing the work in dispute, Defendant C was limited in capacity and was under the guardianship of her guardian, Defendant B. According to Paragraph 1 of Article 187 of Taiwan Civil Code, Defendant B shall be jointly liable with Defendant C for any damage arising from the infringement. Although Defendant C died prior to the date of the oral debate session and Plaintiff A had already withdrawn the litigation against Defendant C, the creditor of a joint-obligation is entitled to demand one of the debtors successively to tender total or partial performance pursuant to Article 273 of Taiwan Civil Code. Therefore, Plaintiff A is still entitled to claim damage compensation individually against Defendant B for Defendant C's infringement on A's copyright.


The IPC ruled that though Defendant C had, without any prior consent from Plaintiff A, reproduced and publicly transmitted the advertisement and images in dispute in separate posts and at different points of time; however, since the evidence of these separate occurrences of reproduction and public transmission was collected by Plaintiff A and the litigation was brought by Plaintiff A to claim for the damage arising therefrom, these separate occurrences should be viewed as a whole. Moreover, taking into consideration the low level of creativity in the advertisement and images in dispute, the IPC determined the damage therefrom as amounting to NT$25,000.