The International Standards Of The Scope Of Works And Improvement Of The Related System Of China

Copyright is one of the key areas of traditional intellectual property rights. Works is one of the most important concepts of the Copyright Law. There is no Copyright without works. Understanding the concept of works properly is of great significance. In this paper, "the International Standards of Scope of Works and Improvement of the Related System of China ", the author aims to understand the standard properly,improves our related system and serves for the development of related industries.There are lots of complex factors affecting the scope of works, of which originality and legitimate form are fundamental. Meantime, to a large extent, the scope of works is determined by factors such as interest and development of technology, etc. With the rapid spread of cloning technology, the works scope is expanding. In practice, how to define the works is getting more and more difficult. Statute and scholars have given different interpretations of works. The author thinks that works should be intellectual creation with the originality; in the areas of literature, art, science; expressed in the form conforming to law; reflecting people's thoughts or feelings. Originality is the core to determine the scope of works. The dichotomy of "idea / expression" determines the extension of works, lays the foundation for the scope of works, balances interest between the public and authors as well as other creators. It is a basic principle widely accepted by many countries that only original works can be protected by law. There are different criteria for originality. In civil legal system, Germany uses "highly creative" elements and France uses "reflecting the author's personality"; Anglo-American legal system, the traditional British uses "investment of techniques, labor or judgment" standard; the United States uses "the sweat of brows", and "a small amount of creativity" standard. We should identify originality in principled and flexible way. In practice, we can refer to the "three-step" established in the case of "Altai", considering whether works is the original idea of the author, whether works is independent creation of the author, whether works has a certain amount of creativity, whether works is completely not the content of other works, or not basically the same with other works. The scope of works is defined by originality, while it is affected largely by technological development and interests and other factors. Technological developments have expanded the scope of protected works. Meantime, to a certain extent, the balance of interests affects which works will be protected by copyright law.China has joined in many international copyright conventions, such as the "Berne Convention", "Universal Copyright Convention" and TRIPS. These conventions have established international standards of the scope of works. "Berne Convention" is the first multilateral international convention for the purpose of the protection of literary and artistic works, and it is the first one using automatic protection principle of copyright; it adopts a series of the principles of international law as "minimum requirements" which have become the de facto international standards. "Universal Copyright Convention" has obvious characteristics of the Anglo-American legal system, excludes moral rights, regulates fewer economic rights, offers relatively short duration of the protection, does not require retroactive protection of the new members, and actually establishes a relatively low protection level of copyrights system. "Universal Copyright Convention" provides for its unique principle of non-automatic protection, as a compromise between principles of the automatic protection and non-automatic protection, to attract the United States and some Latin American countries to join in. TRIPS brings copyright into the international trade system. TRIPS first introduces the MFN of GATT into the international intellectual property system, which has expanded the scope of TRIPS and made it effective, has provided an important legal basis for non-discriminatory Copyright trade among the members. TRIPS inherits the definition of the works from the "Berne Convention", excludes the protection for the spirit rights. Based on her own understanding, the author thinks, the International Conventions have established international standards of the scope of works. First, dichotomy of "idea/expression ", resolves the extension of the originality, lays the foundation for limitation of scope of works, and balances interest between authors and other creators, as well as the public. Second, the Conventions establish the lowest standards of works scope and set aside enough space for domestic legislation.China actively fulfills its obligations. According to Chinese commitment to the WTO, on October 27, 2001 China amended "Copyright Law of the People's Republic of China" which came into force on the same day. The revised "copyright law" modifies the scope of the works, e.g. adding protected works, improving the classification. But there are still omissions and deficiencies in our current law. For example, there are no relevant regulations for our preponderant works i.e. folk literary and artistic works. There are no expressly requirements for the protection of the works of applied art. Classification does not take into account a variety of criteria in order to meet the development of the works scope. Copyright develops rapidly in China. However, it is forced to pay for the legislative bargaining for WTO entry. So it is not based on Chinese most extensive social needs. In the process of development of the system of works, the best way is to interpret the treaties properly to protect our national interests. We should not blindly follow international standards. We should not echo what other says that is too harsh on developing countries. We should explore an effective way to protect our national interests in the framework of the existing system. We should make full use of reserved space in the international treaties. We should explain relevantly in line with the specific situation in China. Specifically, first, we should fulfill the international obligations, integrate with the world. And it is not necessary to give higher standards of protection. Second, we must fully study the intellectual property treaties. We should fully exercise our rights. Third, we must strive with other developing countries to bring our own preponderant works into the international protection system of intellectual property. We should raise intellectual awareness of the whole nation, improve the protection of copyright.