Research On The Copyright Of Derivative Works

In the legal system of copyright,derivative work are an important type of works.With the emergence and development of the derivative works right,the legal status of derivative work is gradually established by all countries in the world.In recent years,there are a large number of disputes over the copyright of derivative work in our country,and the disputes in judicial practice continue.The academic circles have different opinions on the relationship between the original works and the copyright of derivative work and the protection of illegal derivative work.In terms of legislation,the concept of derivative work has not been clearly defined in the copyright law of China,and the specific derivative works right such as editing right,translation right and shooting right have yet to be improved.Although the Copyright Law(Revised Draft for Review)clearly stipulates the derivative work,the "double license" provisions in the derivative work copyright license still can't meet the practical needs of " mass authorization" under the digital environment.To a certain extent,it hinders the second innovation of works,which highlights the necessity of research on the copyright of derivative works the basic theory of copyright and perfecting the legislation.The essential attribute of the works is the starting point of this paper,and the interaction of the works is the root of the derivative work.Firstly,the connotation and extension of the derivative work are analyzed,the historical evolution of the derivative work is investigated,and the judicial precedents at home and abroad are combined.This paper discusses the criterion of identity and originality in derivative work,based on John Rawls' A Theory of Justice,and points out that freedom of expression is the basis of the legitimacy of the copyright of derivative work.The market of derivative work is the economic incentive for the copyright of derivative work,the derivative works right is the basis for the ownership of the copyright of derivative work,and there are still some urgent problems in the legislation of the derivative works right in our country,and the deductive authors enjoy the copyright of the derivative work.However,it is relatively independent,which determines the restriction and restriction of the original works on the copyright of the derivative work,and the implied license should be introduced into the copyright license of the derivative work in the digital environment.Constructing the implied license system between the original author and the user can not only improve the efficiency of the license,but also protect the legitimate rights and interests of the original author and the deductive author.Construct the negative protection mode of copyright of illegally derivative work.Finally,based on the theoretical results of the study of the copyright of derivative work,the author puts forward some legislative suggestions to perfect the provisions of derivative work and the derivative works right,which provides a reference for the third revision of the copyright Law.The whole structure of the paper is divided into introduction,text and conclusion.Introduction,mainly introduces the background and significance of this topic,the current situation of research at home and abroad,research ideas and research content,research methods and academic innovation.The text is divided into chapter 6.The core elements are now distilled as follows:Chapter ? is the summary of derivative work.The interactivity of the works determines the important position and research value of the derivative work.Derivative work is a special type of works,that is,based on the existing works through the processing,change,rewriting,adaptation and other ways to complete the creation of new forms of expression of works.The concept of derivative work is stipulated in article 16 of the Copyright Law(Revised Draft for Review)in 2014,which has achieved a new breakthrough in the legislation of derivative work.however,in the specific definition,there is still need to be improved.However,in the specific definition,there are still some areas that need to be improved.Reviewing the history of derivative work,although Anna decree confirms the author's copyright subject status for the first time,the concept of mechanical reproduction denies the derivative work.It can be said that the derivative work are the product of the balance of interests and the progress of communication technology.The balance of interests between authors and publishers,between authors and users of works,between original authors and deductive authors,and among sovereign states promoted the legislative protection of performing works.The deep change of communication technology promotes the system innovation of derivative work.The copyright law of 1976 in the United States stipulates the concept of derivative work,which marks the establishment of the legal status of derivative work in the modern sense.Chapter ? deduces the standard of the derivative work.Identity and originality are the criteria for the determination of derivative work.The standard of identity of derivative work is the reason why derivative work are different from ordinary original works.Derivative work should use the expression of the original works rather than ideas,and constitute a substantial similarity with the original works.In judicial practice,the whole concept and sensory test method and partial test method have some limitations,while the user standard can be applied to the whole concept and sensory test method and partial test method.Transformative use is the exception to the principle of identity.It is concluded from the judicial practice of transformative use that the factors of economic interest should be taken into account in the measurement of"transformative use".The criterion of originality of derivative work is the basis of copyright protection for derivative work,and the judgment subject of originality should be based on the overall standards of the public.Exceptions are "ordinary readers with higher attention" and "readers to whom the work is directed".At the same time,when judging the originality of derivative work,three factors should be taken into account,namely,the change of works carrier,the principle of merging,the influence of artistic skills and complex labor.In the aspect of determining the derivative work of special works,it is the mainstream point of view that the mode of derivative work protects copying works in the legislation of countries all over the world,and whether the achievements of ancient books and schools constitute derivative work,It is also necessary to return to the standard of "substantial change",which is the traditional judgment method of the originality of derivative work.Chapter ? deduces the legitimacy of copyright in derivative work.John Rawls' "A Theory of Justice" provides a new perspective for us to study the legitimacy of the copyright of derivative work.John Rawls' "A Theory of Justice" focuses on the basic structure of the whole society.Its system justice standards cover two principles of justice and two rules of priority,and better compatible with human rights,equality,freedom and other value demands.The three legal values of fundamental' freedom,distributive justice and maximization of social welfare contain the basis of copyright legitimacy from the perspective of "A Theory of Justice".Freedom of expression is the basis for the justification of copyright in derivative work,which is covered by the first justice principle of copyright law in John Rawls' A Theory of Justice.In view of the primacy of freedom of expression in the criterion of justice,the balance between the conflict between copyright and freedom of expression should be the priority of freedom of expression.The economic incentive theory,which is centered on encouraging the author's creation,has been playing an important role in the history of copyright development.The market interest of the derivative work is the concrete embodiment of the economic incentive theory in the derivative work,the income from the market of the derivative work,and the economic inducement of the original author and the deductive author.Chapter ? attribution and limitation of copyright in derivative work.Deductive right is the basis of copyright attribution of derivative work.The content of the derivative works right should include the behavior of using the derivative work.There is no clear definition of derivative works in Copyright Law of our country,and the definitions of adaptation right,translation right and production right are respectively defined.The right of adaptation is the most important type of the derivative works right,which should include changing the content and type of works and creating new works.Although it belongs to the category of the derivative works right as well as the right of translation,it is necessary to define it clearly in Copyright Law.With the rapid development of digital technology,the means of producing "audio-visual works" has not been limited to "production",so it is meaningless to set up the right of production in Copyright Law,and the right to film should be included in the definition of the right of adaptation.The copyright of a deductive work belongs to the derivative author.The expression of "not to infringe the copyright of the original work" in the copyright legislation of our country reflects the relative independence of the derivative author enjoying the copyright of the derivative works.The rights of the original author to the derivative works determine the limitation of the original work on the copyright of the derivative works.The limitation of the property right and personality right of the original works has important research value in the judicial practice.Chapter VI the copyright licensing system of deductive works.The introduction of implied license of derivative work copyright creates the possibility for the improvement of licensing efficiency and transmission efficiency.The present copyright Law of our country lacks systematicness and unity in the regulation of the copyright license system of derivative work,which is apt to cause the disunity of the applicable law in the judicial practice.The research shows that,in the digital environment,compared with the copyright restriction system such as legal license and reasonable use,the implied license of deductive copyright of works has obvious advantages.Therefore,it is suggested that the implied license system should be applied between the original copyright owner and the user in order to prevent the adverse effect of the free deduction rule on the original work.We should still retain the licensing mechanism between the deductive author and the user.At the same time,we should clearly stipulate the obligation of information disclosure in the use license of the deductive work,and grant the original author the right to obtain remuneration for the use license of the deductive work.In order to ensure the effective implementation of the implied license system,we should take the right of arbitrary rescission as the guarantee,fully protect the legitimate rights and interests of the copyright owners of the original works,and establish a perfect mechanism of payment and distribution of benefits based on the collective management organization of copyright.Chapter ? copyright protection of derivative work.The protection of illegal derivative work has always been a hot topic in the study of derivative work.The non-protection theory,copyright protection theory,negative protection theory,added rules protection theory and unjust enrichment protection theory of illegal derivative work are all due to their rationality and drawbacks.The negative protection mode of copyright of illegal derivative work is the negative protection mode of limited rights,which realizes the isolation protection of rights attribution and work use.The jurisprudence and economics analysis of the negative protection of copyright in illegal derivative work shows that the best choice of legal protection of illegal derivative work in China is the negative protection mode of copyright.In view of this,our country should take the German legislative experience as the reference,stipulate the negative protection mode of the copyright of the illegal derivative work,construct the protection system of the illegal derivative work in order to realize the distributive justice,and take the non-cessation of infringement as the exception.Give full play to the role of collective management organizations.Finally,on the basis of summing up and combing the full text,combined with the provisions of the current Copyright Law and the Copyright Law(Revised Draft for Review),five concrete suggestions are put forward to perfect the copyright system of Chinese derivative work.In order to provide reference for the third revision of Copyright Law.