The courts in Taiwan had consistently denied copyright protection for pornographies in the past.

 

In a 1999 criminal decision, Taiwan's Supreme Court identified copyrightable works as creations that are within a literary, scientific, artistic, or other intellectual domain.  The Supreme Court reasoned that Taiwan's Copyright Act was enacted for the purposes of protecting the rights and interests of authors with respect to their works while balancing different interests for the common good of society and promoting the development of national culture.  Pornographic materials are not copyrightable because they fall into a category of creations that disturb social orderliness and good morals, contradict with the goals of the Copyright Act, and fail to contribute to social development.  Additionally, pornographic materials should not be protected because they impair the public virtue, agitate the state of repose, and offend the sensibility of Taiwan's conservative social customs.  Therefore, the creators of pornographic materials cannot pursuit either civil or criminal remedies under copyright law.  The Supreme Court reiterated and confirmed the same interpretation in a 2005 criminal decision.

 

However, Taiwan's Intellectual Property Court expressed a different view on 20 February 2014 in a criminal judgment for a copyright infringement accusation case and granted protection for pornographic materials based on an originality analysis.

 

The IP Court pointed out that the Copyright Act grants copyright protection for the owner of an original work of authorship upon the completion of the work.  Thus, a pornographic work is copyrightable if it is the creation of the author's independent and original thoughts, intelligence, and skills.

 

The IP Court issued a press release on 20 February 2014 and stated that the principle of the Copyright Act is to protect the original works of authorship.  The pornographic contents of this case meet all the criteria of copyrightability because they are original works of authorship.  Furthermore, if the erotic works are offensive to the social morality or other legal standards, the government should protect the social custom and the youth by enforcing legal restrictions over the production, display, distribution, broadcast, publication, and ownership of such works.  The government should not prohibit the creators of erotic works from obtaining copyright protection because the social considerations are separate issues.  Furthermore, the courts should not deny copyrightability for all erotic works per se without balancing the society's interests in protecting the common good with the authors' interests in protecting their creative works.

 

The IP Court's decision prompted heated debates among various interest groups.  Moreover, the Supreme Court's legal position for this case may remain unknown because the case cannot be appealed.  It may be still an issue whether the Supreme Court and other courts will accept the IP Court's view over similar cases.