According to Article 3, Paragraph 1, Subparagraph 11 of the Copyright Act, an "adaptation" refers to the creation of another work based on a pre-existing work by translation, musical arrangement, revision, filming, or other means. According to the Intellectual Property Court, derivative works resulting from an adaptation should still contain elements of the original work; if a different work has been created through the use of the original work, the work is not considered a derivative work according to the Copyright Act, but it is instead deemed a completely new work. Naturally, such work does not involve the issue of infringing the original author's adaptation rights.
According to judgment 103-Min-Zhu-Shang-Zi No. 12 issued by the Intellectual Property Court on December 3, 2015 concerning whether copyrights have been infringed due to adaptations of computer programs, the Court determined that even where software code was modified based on the work of others, if the extent of modification and modified functions have resulted in a significant distinction from the original work, the modified work shall be considered an independent work and not a derivative work; therefore, said work would not infringe the copyright of the preceding work. Even if the two works share common elements, where the common elements are not subject to protection under the Copyright Act, or when ways of expressing the common elements are limited and thereby exclude the elements from copyright protection, the modified work will also not be deemed as having infringed the copyright of the preceding work.
The facts of this case are as follows: The Appellant entered into a contract with Company A to develop the disputed Software I; the copyright of Software I was to be held exclusively by the Appellant, while Company A and its affiliate enterprises would have the rights to reproduce, adapt, and utilize said software free of charge. The two parties later entered into another contract under which the Appellant developed the disputed Software II, the copyright of which was vested in the Appellant, while only Company A is entitled to use said product. The Appellee, Company B, was formerly an affiliate enterprise of Company A but subsequently split away from Company A. The Appellant claimed that Company B, without consent from the Appellant, continued to use and adapt Software I and II after it had split from Company A, apparently infringing the copyrights of the software programs.
Company B argued in its defense that the disputed software code was insufficient for supporting its business operations and that the software code as used by B had therefore undergone major modifications; Company B had developed code on its own to suit its purposes and has incorporated many new features, making the new program an independent work, and thus it did not infringe the Appellant's copyright.
In its judgment, the Intellectual Property Court determined that Company B, after separating from Company A, had made modifications to disputed Software I, incorporating many new components. After a comparison, it was found that the user interface had been changed, while allocation and designs of the function interface and function blocks also differed from the original program. Although the same spelling mistake existed in both the Software I used by Company B and in the Appellant's software, the similarity lies only in the expression of a column name corresponding to relevant data fields as opposed to the overall design expression of the user interface. The Court therefore deemed the issue unnecessary of consideration. Furthermore, the misspelled column name or slogan should fall under Article 9, Paragraph 1, Subparagraph 3 of the Copyright Act, and shall not be a subject matter of copyright protection. Therefore, concerning the disputed Software I, no infringement has been constituted on the part of Company B.
With regard to the disputed Software II, Company A had rewritten and replaced Software II entirely, retaining only common elements such as its parameters, parameter profile, calling function for connecting to a database, and database columns. Therefore, it was determined that Company A had re-developed Software II on its own and then transferred it to Company B, which used and reproduced Software II as provided by Company A, but it did not infringe the Appellant's copyright of the disputed Software II. Also, Company B made its own developments using .Net, which differed from the Java programming language used by the Appellant. Because the source code of each respective program was written in a different manner, it naturally did not constitute an infringement of the programming language.
Even though the Appellant held copyrights for the disputed Software I and II, the Court's final judgment found Company B to have neither infringed the copyrights of the disputed software programs nor willfully or negligently infringed the software copyrights, and the Appellant's appeal was subsequently dismissed.
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