A Study on the Elements of Copyright Infringement
|關鍵字:||著作權侵害;接觸;實質相似;重製;抄襲;不當取用;明顯近似;整體觀念及感覺測試法;反覆測試法;模式測試法;一般觀眾;事實上近似性;Copyright Infringement;Access;Substantial Similarity;Copying;Improper Appropriation;Striking Similarity;Total Concept and Feel Test;Iterative Test;Pattern Test;Ordinary Observer;Probative Similarity|
Traditionally, courts often face many difficulties and uncertainties when considering cases of copyright infringement due to the many types of works involved that can be copyright protected. The multi-faceted nature of copyrighted works is the source of many controversies and heated debates in among legal scholars and legal practitioners. In Taiwan, when the court is considering copyright infringement, it usually emphasizes heavily on two criteria: “access” and “substantial similarity” as the overall determining factors when the court is making judgment. However, whether just considering these two factors alone are legally sufficient and valid is a matter of much debate. Furthermore, Taiwan’s copyright act only stipulates the effect of copyright violation, it says little if any on how to determine copyright infringement. Consequently, it is very important to surmise a reliable procedure and essential factors involved in determining copyright infringement. In this thesis, the author will begin by categorizing and elaborating on some of the most influential legal theories behind what constitute as copyright infringement from both U.S. and Taiwan jurisprudence. Furthermore, the author will also provide a thorough introduction on some of the early Taiwan high court’s decisions on copyright infringement that had incorporated legal theories from America in their rationale. As the result of from these early judgments, many lower courts decisions also follow the legal reasoning and factors set forth in the high court’s decisions when making their own judgment on copyright infringement. Moreover, this paper will also incorporate some of the less discussed criteria and legal theories regarding copyright infringement in Taiwan from multiple sources such as law reviews and legal journals from U.S. From analyzing literatures from these sources, the author will attempt to put forth some suggestions and observations for Taiwan court to consider when making judgment on copyright infringements. This paper will analyze and perform statistical tests on cases of copyright infringement gathered from Intellectual Property court since its inception in July 2008. This result will be compared with judgments made in American courts and sorted by different legal reasoning and factors used by these courts when making their decisions. Comparatively in Taiwan, factors and procedure used in copyright infringement litigation are highly diverse among different courts. The diversity of judgment on similar issues is the source of uncertainty for the general public and undermines general public’s reliance to the legal system due to the unpredictability in court’s decision making process. Consequently, author will analyzes and categorizes legal theories and judgments from both courts in Taiwan and United States, in an attempt to propose a reliable procedure and a set factor to consider when making judgment in copyright infringement. Hopefully this paper will serve Taiwan’s courts by providing more reliable criteria and procedure to follow in the cases involving copyright infringement; while, serve the public’s interest by increasing reliability of court’s decision making process.
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