Newsletter
Authors Shall Retain Their Manuscripts, Creation Processes, or Other Evidences Sufficient to Prove Source of Their Works
According to Copyright Act, Article 3, Paragraph 1, Sub-paragraph 1, "Work" means a creation within a literary, scientific, artistic, or other intellectual domain. Such a work shall contain "originality" and a specific form of expression, and shall not be the subject matter listed in Article 9, Paragraph 1 of the Copyright Act (i.e., works that cannot enjoy copyrights). The term "originality" includes aboriginality and creativity in the Copyright Act. “Aboriginality” means that the author's original work is done independently without plagiarism. On the other hand, “creativity” signifies that the said work is sufficient to express the author's thoughts and feelings, with variations distinguishable from prior works and adequate enough to express the author's personality and uniqueness. In practice, if a plaintiff asserts a copyright claim without presenting informative explanations and evidences on whether he/she created the work or how the elements of the Copyright Act are met, the court may recognize that the plaintiff fails to fulfill the burden of proof in "originality."
In the 2021 Min Zhu Su Zi No. 92 Civil Judgment, the Intellectual Property and Commercial Court (IPCC) emphasized the plaintiff's burden of proof in "originality." Even though the plaintiff presented a certificate of appreciation issued by a government agency to prove that the Mazu (a Chinese sea goddess) Chair was his/her creation, the court indicated that the certificate of appreciation did not keep any text record relevant to the plaintiff's own work, but only proved the plaintiff's participation in the relevant activities instead. The certificate failed to justify that the plaintiff was the author of the Mazu Chair. Also, even though the photos presented by the plaintiff showed cards with the plaintiff's name and the text of "Divine Sedan Chair" as well as the work of a chair, the court could not determine from the photo whether the said chair is the Mazu chair in dispute created by the plaintiff. Accordingly, the court concluded that the evidences provided by the plaintiff could not serve as a favorable fact that the plaintiff is the author of the Mazu Chair in dispute. Moreover, in the 2019 Min Zhu Shang Zi No. 5 Civil Judgment, the IPCC also indicated that the court could not tell from the manuscripts of hand-painted drawings presented by the plaintiff who drew the manuscripts, nor determined the actual date of completion of the illustrations or the time of their public publication. Hence, doubts about the completion time or publication time of the said works asserted by the plaintiff still remained.
It is undeniable that "originality" is the first step in a plaintiff's claim of copyright. In turn, the court will require the plaintiff (i.e., the author) to prove how they conform to the elements of "originality" (e.g., by presenting the manuscript of creation or the creation process thereof). As a result, the author must keep relevant evidences during and after the creation process lest the author's copyright status be challenged by the court or the counterparty when asserting copyright in the future.