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The Extent of Proof of "Access" in Copyright Infringement Litigation


Hsiu-Ru Chien/Veda Chen

Company A and Company B filed a lawsuit, claiming that the leather bag products marketed and promoted by Company C that carried the same design as their leather bags were a reproduction of their art work, and thereby constituted infringement of their copyright.
 
In practice, when adjudicating copyright infringement, in addition to considering whether the work of the alleged infringer is substantially similar to the copyright owner's work, it is also necessary for the court to investigate whether there is evidence showing that the infringer "accessed" the copyright owner's work. With regard to the latter, the copyright owner generally bears the burden of proof.
 
The Intellectual Property Court's 2017 Min Zhu Su Zi No. 68 Civil Judgment (dated August 21, 2018; hereinafter referred to as "Judgment") provided specific opinion regarding the extent to which the copyright owner should prove the above-mentioned "access." It first cited the Supreme Court's 2014 Tai Shun Zi No. 1544 Civil Judgment (dated July 31, 2014), stating that the "access" can be categorized into direct access and indirect access, and that indirect access referred to the situation where the accused infringer has a reasonable opportunity to access the work under reasonable conditions. When two similar products have a competitive relationship and are circulated in the open market, it should be assumed that there was at least indirect access, if based on common sense, it could not be ruled out that the work of the claimant could have been accessed.
 
The Judgment then cited the Intellectual Property Court's 2014 Hsing Chih Shang Su Zi No. 54 Criminal Judgment (dated January 22, 2015) and the Intellectual Property Court’s 2011 Hsing Chih Shang Su Zi No. 39 Criminal Judgment (dated: November 10, 2011), clarifying that for two works of substantive similarity, although it is not impossible that the two works were created independently of each other, based on common sense, the greater the degree of similarity, the higher the possibility that the infringer had accessed the author's creation. Therefore, the examination of the "access" requirement must be based on comprehensive consideration of the degree of "similarity" between the two works. If the degree of similarity is not high, the public prosecutor should bear a higher level of proof with regard to "exposure possibility"; but if the degree of similarity is very high, the public prosecutor only has to prove that generally, there is possibility or reasonable chance of access. Only when the degree of similarity is very low would proof of "actual access" be required.
 
The Intellectual Property Court’s 2013 Hsing Chih Shang Yi Zi No. 35 Criminal Judgment (dated October 23, 2013) also reiterated that, if the perpetrator's work bore striking similarity to the author's work, to the extent that it was hard to believe such perpetrator had never accessed the author’s work, it would be presumed that the perpetrator had accessed the author's work.
 
The Judgment pointed out that, since the threshold of criminal punishment under the Copyright Act should not be lower than that of civil tort, the same should be true of the establishment of civil copyright infringement. Given that the leather bag products of Company C were highly similar to those of Company A and Company B, and that the probability to create such similar works without plagiarism was very low, it is extremely unlikely that it was a coincidence. Therefore, the Judgment determined that based on the foregoing judgments, Company A and Company B did not need to prove that Company C actually accessed their leather bag products, and plagiarism and infringement by Company C could be established.
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