Research On Derivative Right Infringement Under The Theory Of Derivative Behavior Revision

As our country's "Copyright Law" is facing the third comprehensive revision,the author's rights are hotly discussed in academic circles once again,specially for derivative right.Nearly a hundred years after the birth of the first modern Copyright Law in the world,the "Q ueen Anna Act",the right of reproduction has always been the core right of copyright.With the development of the times,the content and scope of the rights of authors are constantly expanding,and it has been hundreds of years since the date of establishment of the derivative right.However,although the derivative behaviors are becoming more abundant,derivative works emerge in an endless stream,and derivative right infringements are commonplace,derivative rights have still not been reflected in our country's copyright legal system,bringing many judicial decisions.In other countries,the derivative right has always been regarded as one of the most important rights of authors,as well as the right of reproduction,and has received great attention and development.However,in our country,derivative right have not received enough attention so far,and even relevant scientific research o n derivative right is very rare.In order to protect the rights and interests of author groups,it is necessary to propose theoretical research on derivative right suitable for the Copyright Law of our country on the basis of absorbing advanced theories and achievements from outside of the territory.The most important purpose of this research is to enable our country's Copyright Law to establish the author's derivative right system,and to provide sufficient legal basis for derivative right infringement.In addition to the introduction and conclusion,this article contains the following parts:The first part is an overview of derivative behavior expansion theory.This chapter summarizes the theory of derivative behavior expansion from five aspects: the origin of derivative behavior and history,the comparison of typical foreign national legislation,the basis of legal philosophy of derivative behavior expansion theory,the practical proof of derivative behavior expansion theory,and the reshaping of derivative behavior.In the early stage after the birth of the Copyright Law,based on the idea that "copyright originates from the right to reprint books",the legislators created the right of reproduction,and was stingy to grant the author deductive right.The legis lator believed that the author's deductive right would seriously hinder the freedom and right of the public to obtain information.However,with the victory of the bourgeois revolution in the European continent,legislators under the guidance of the concept of "human rights" gradually paid attention to and began to expand the content and scope of the author's rights,and the deductive right was gradually confirmed by legislation.Although different countries have different regulations on derivative behaviors,each distinctive legislation provides ample comparative law research examples for the theory of derivative behavior expansion.From Locke to Hegel,the evolution of legal philosophy theory provides philosophical theoretical accumulation for the legitimacy of derivative behavior expansion.And from instrumentalism theory to ideological expression theory,the purpose of copyright creation has transitioned from protecting the rights of authors to taking into account the public interest,and through the establishment of the concept of "Copyright protection original expressions",a balance has been struck between the two sides.In reality,the freedom of creation and protection are guaranteed.Societal needs such as the author's intellectual achievements and the determination of copyright infringement have become practical needs to promote the expansion of derivative behavior.The foundation of philosophy and the needs of society provide sufficient theoretical support and practical significance for the expansion of derivative behaviors.Based on the above research results,this section proposes to expand and reshape the existing derivative behaviors.With the circulation of expression as a line,the derivative behavior is redefined as a copyright protection.The second part is the reconstruction of derivative right.This chapter expounds the relationship between derivative rights and the copyright of derivative works from four aspects: the evolution of the concept of derivative rights,the characteristics of derivative rights,the relationship between the derivative right and the copyright of derivative works and illegal derivative works.In the early days after the enactment and promulgation of the Copyright Law,because the legislators encouraged creation and denied the author's derivative right,anyone's derivative can be protected by the Copyright Law.With the awakening of the author's awareness of rights and the creation of derivative rights,derivative behavior is under the exclusive control and monopoly of the author.Only by abstracting and generalizing derivative behavior can we deeply understand the essence of derivative rights and distinguish them effectively from similar behaviors and similar rights better.At the same time,based on the theory of derivative behavior expansion,the creation of derivative works is controlled by the author's derivative right.O n the one hand,as a direct result of derivative behavior,the copyright on derivative works is derived from the derivative right and is restricted by it.O n the other hand,derivative rights infringements will produce the illegal derivative works.Even if the illegal derivative works can obtain copyright due to the rights of Copyright Law,the infringement should bear reasonable responsibility coming from Copyright Law.Based on the existing theories of Copyright Law,this section reconstructs the important author's right of derivative rights based on a comprehensive review of the content of derivative behaviors,reasonably analyzes the relationship between derivative rights and copyright of derivative works even illega l derivative works,and sets the foundation for the next research on infringement of derivative rights.The third part is the elaboration of the infringement identification system of derivative right.This chapter discusses the infringement of derivative rights from four parts:overview of copyright infringement,determination of general infringement of derivative rights,determination of special infringement of derivative rights,and legal liability of derivative rights infringement.Hundreds of years of judicial practice after the birth of the Copyright Law have summed up a complete set of standards for the determination of copyright infringement,which can also be applied to the determination of derivative infringement.In view of the characteristics of deriva tive right itself,it is not only necessary to make a choice when applying the standard,but also need to improve the rules and methods for determining the infringement according to the nature of the derivative behaviors when determining the infringement of the derivative right.Based on this,the determination of derivative rights infringement should be based on reasonable abandonment of the basic copyright infringement determination rules and methods,starting from two aspects: infringement derivative behaviors and illegal derivative works using.In short,this section proposes a derivative right infringement determination system based on the theory of derivative behavior expansion and the reconstruction of the content of derivative rights.It also adopts fair use,lack of originality,and principles of fairness,which explained the exceptions of determining the infringement of derivative rights.