Newsletter
SIMILARITY AND ACCESS CRUCIAL FOR COPYRIGHT INFRINGEMENT
The Copyright Act does not expressly address the issue of whether copyright is infringed when a work is identical or substantially similar to a work previously created by another person. In a 2007 criminal judgment, the Supreme Court stated that when determining whether copyright has been infringed, it is necessary to consider the two criteria of "substantial similarity" and "access". That is to say, in addition to considering whether the content of the two works is expressed in an identical or substantially similar way, the copyright holder must also present evidence showing that the alleged infringer had prior access to the copyright holder's work.
The Supreme Court stated that in applying the criterion of substantial similarity, the courts should consider not only quantitative similarity, but also qualitative similarity. When making a judgment as to whether a textual work has been plagiarized, both qualitative and quantitative aspects of the use of the allegedly infringing content should be measured against objective societal standards, according to the form and nature of the acts of reproduction.
The Taichung District Court gave more specific guidance in a 2007 criminal judgment. The district court stated that the judgment as to "substantial similarity" is related to the nature of the copyright holder' work. If it is a factual work in which a large proportion of the content is derived from the public domain, then because (1) there is little scope for invention or free creative endeavor, (2) potential modes of expression are limited, and (3) sources of information often duplicate each other, a more rigorous standard should be applied with regard to the criterion of "substantial similarity". Conversely, if the work is a work of fiction, a work of poetry, or another work involving a relatively high degree of creativity, then the standard for finding substantial similarity should be less strict.