Complaint alleging that All Chinese Co., Ltd.'s classified job ads in newspapers and magazines violated the Fair Trade Law
Case:
Complaint alleging that All Chinese Co., Ltd.'s classified job ads in newspapers and magazines violated the Fair Trade Law
Key Words:
job bank, job ads, fruits of efforts, exclusive right over the information
Reference:
Fair Trade Commission Decision of November 1, 2001 (the 521st Commissioners' Meeting); Letter (90) Kung Yi Tzu No. 9011257-019
Industry:
Information Provision Services Industry (7321)
Relevant Law:
Article 24 of the Fair Trade Law
Summary:
1. China Times Inc. (China Times) alleged in a complaint that All Chinese Co., Ltd. (All Chinese) had unlawfully and repeatedly misappropriated the job ads published in the China Times newspaper by China Times without obtaining its approval or licensing and passed them off as information belonging to the "1111 Job Bank" Website established by All Chinese. 2. Although All Chinese did not dispute that it posted job ads that had been published in the China Times newspaper on its Website, it also pointed out that it had cited the source of the information - the name of the newspaper - for each job ad. The Fair Trade Commission itself conducted searches for the job ads on the "1111 Job Bank" Website and found that the words "China Times Taipei City Page No.: 00" were indicated in each search result. Hence, All Chinese did not seem to intend to misappropriate the information.China Times also held, based upon supporting evidence provided by its affiliated enterprise, that All Chinese posted the job ads on its Website without obtaining approval. However, it cannot be inferred from the evidence that the advertisers did not agree to the posting of the job ads on the "1111 Job Bank" Website. All Chinese may have failed to actually obtain the approval of the advertisers (the enterprises seeking employees). However, under the concept of "spontaneous agency" (management of affairs without mandate) in the Civil Code, it would have been advantageous to the advertisers to have more channels for the public circulation of the job ads. So, despite the failure of All Chinese to obtain authorization, it could still be inferred that the posting of the job ads on the "1111 Job Bank" Website would be approved by most of the advertisers and would not run counter to their original intentions. Furthermore, the use of the "1111 Job Bank" as a channel for the transmission of the job ads does not necessarily preclude the use of print media. If China Times continues to maintain high circulation and sales volumes, businesses will naturally continue to publish job classifieds in the China Times; no serious impact would be imposed on the China Times from the alleged conduct.The job ads were published at the request of the advertisers, and did not constitute the fruits of the creative works or direct efforts of the China Times. The advertisers are free to circulate their job ads through various channels. It cannot be deemed that the China Times obtained exclusive rights to use the job ads and restrict their circulation simply by providing the medium for the postings. Hence China Times' claim that All Chinese acted against the interests of the advertisers is groundless. The advertisers on their own initiative had provided the job ads published by the China Times, and China Times furnished the page space for the ads with considerations. The complainant merely provided page space for the job ads and work of layout and publication. Layout of ads is a work necessary to obtain advertising revenues and does not constitute "fruits of efforts" for purposes of the Fair Trade Law. 3. All Chinese's use of job ads published in the China Times newspaper on its own Website does not constitute the exploitation of the fruits of another's efforts, and the China Times cannot be deemed to have any exclusive rights over the information in the job ads. In conclusion, based on the existing evidence, All Chinese did not violate Article 24 of the Fair Trade Law.Appendix:All Chinese Co., Ltd.'s Uniform Invoice Number: 16776387Summarized by Tseng, Chiu-Chen; Supervised by Horng, Der-Chang