Study On The Composition Of Derivative Works

Generally speaking,under copyright law,all literary works fall into two categories:original and derivative works.Original works are those which are created in their entirety by the author.Derivative works are those which have been adapted,excerpted,and/or otherwise altered.Since the end of the nineteenth century,most countries and territories,around the world,have developed their own copyright regulations concerning derivative works,in order to meet the needs of social and cultural development.In general,to study a legal object system,we always determine what kind of things can belong to the object and thus can be included in the system,and then analyze what kind of legal evaluation should be given to the object in detail,for example,what kind of right and protection should be given to it.In this sense,the composition of derivative works can be regarded as the foundation of the entire system of derivative works.All academic circles at home and abroad haven't given a good answer to the problem,which cannot but be described as a theoretical deficiency in the full grasp of the system.What is more important is that the justice,legal stability and cultural development have been influenced negatively.China is in the critical period of building the legal system and developing the culture,so the study on the composition of derivative works is particularly important to us.Therefore,this thesis will investigate the composition of derivative works,with hope to contribute to the academic accumulation and social progress.This thesis is made up of three parts:foreword,main body and conclusion.The foreword is an introduction to the background and significance of this thesis and previous research,and also includes the research methodology.It treats the circumstances under which the issues,which are the focus of this thesis,arose;the extent of previous studies,internationally, and their achievements and deficiencies.This thesis largely uses the focused research method.The impetus for writing this thesis,apart from answering some of my own questions,was to clarify some basic copyright law concepts and to find out the legal values behind the law.Four research methodologies are used in this thesis:Method of historical analysis; Method of standardization;Method of sample analysis and Method of comparative analysis.Hopefully,the foreword will give a general explanation of my research from the academic point of view.The main body is made up of six parts.Part 1.Preliminary.This part briefly introduces the basic concept of derivative works. Then,it analyzes the laws of major countries and territories and the relevant international conventions,and points out that the components of derivative works of them are all the same,i.e.utilization and originality. After that,this part observes the judicial practice and theoretical researches, and finds out that there are several theories about it,which are quite different with each other.In view that the legal concept of the object constitutes a basis of its composition and we should grasp the underlying values precisely to understand the legal concept accurately,we should start from understanding the legal concept of derivative works according to the values behind the law to analyze the composition of derivative works.This leads to the next part. Part 2.The values behind the law of derivative works.In view that legal concept contains values,this part tries to find out the values behind the legal concept of derivative works.It analyzes foregoing theories and points out that they differ significantly on the understanding of the values.Then,this part uses several research methodologies,including Method of systematic analysis and Method of historical analysis,to study the values behind the whole copyright law and the system of derivative works.It concludes that the values behind the law of derivative works includes two levels.The first is to take into account the interests of both original and derivative authors.The second is to encourage the creation of the original and derivative works,to develop the culture,and to promote the public welfare.In a sense,derivative works achieve the ultimate objective of cultural progress through the balance between the original and derivative authors.As a result,the second level is more important.This part is the foundation of the following study.Part 3.The components of derivative works.This part holds that the components of derivative works are utilization and originality,and then analyzes the two components under the guidance of values behind the law which are considered in Part 2.Utilization means that derivative works use existing works and build on them.Specifically,the study on utilization includes two elements.The first is the object of utilization.This part points out that it must be the expression of existing works.Because of the difficulties on the judgment between idea and expression,this part puts forward a new criterion,i.e. replacement possibility analysis.The second is the extent of utilization. This part suggests that a qualitative standard should be taken without regard to the quantitative requirement. Originality includes two levels.First,to compose derivative works,we must adopt some derivative approach to adapt the existing works.Any derivative approach can satisfy this condition,and can apply to any works. Second,the final result must contain some original elements and become a new work.In view of its specialty,this part suggests that a derivative work must have some substantive,significant differences in order to achieve originality.Besides,we should set an appropriate judger standard.In a word,originality is the root cause why derivative works can be incorporated into work areas,while utilization is the reason why derivative works are different from the original works.Only after it contains both components,an object can constitute a derivative work.Part 4.Inspection on the components of derivative works.Following Part 3,this part compares derivative works with plagiarized works,compilation works and parody works,which are all established on the use of certain materials.After comparison,this part concludes that with the suggested components in Part 3,we can distinguish between derivative works and plagiarized works and compilation works.However,parody works is a kind of derivative works.So,we have to use the special components of parody works to distinguish them.And this is because their values are different.As a result,this part proves that the suggested components can withstand the tests and reflect the particularity in the values of derivative works.Part 5.The treatment to the conflicts in the components of derivative works.While an object satisfies the components to compose a derivative work,it may infringe on the copyright of thc original work.In view that derivative works and original works can both meet the diverse cultural needs of the people and have positive effects on the cultural promotion,we should deal with the conflict from the overall viewpoint of promoting the culture,and coordinate the relationship between the two authors.This part holds that whether the derivative author infringes on the copyright of the original work or not,the results can compose derivative works.Part 6.Derivative works' copyright and their special exercising.After an object satisfies the two components and compose a derivative work,here comes a question,which is if the work is entitled to copyright. This part deems that the derivative works should be entitled to copyright. Subsequently,this part analyzes briefly the special problems in the exercising of the derivative works' copyright,and holds that the copyright should be subject to certain restrictions to accommodate the two authors' interests and eventually realize the promotion of culture.And then,this part suggests that the derivative authors who infringe on the copyright of the original works should be treated specially,that is,they should be entitled to copyright of only the contributions of their own.This part is to illustrate the result of the composition of derivative works,and also to reflect further the specialties of composition of derivative works and the deep values behind the law.Conclusion.To sum up the entire thesis,draw conclusions,and raise some suggestions to our copyright system.