On The Originality Essential Of Works

Although there are many vast gaps between the system of the right of authorship and the system of copyright, both of them would like to take the Originality as one of the substantive essentials to obtain the right of authorship/copyright protection. It reflects that the substantial characteristics of copyright system, and is an important research aspect in copyright theory and practice. On one hand, the sociality of copyright requires the legislator to make protection for the author's rights on his works; on the other hand, over-protected copyright would be the obstruction to the social progress. Therefore, the sociality of copyright also requires the legislator to make limits for the author's rights on his works. After weighing and considering balance, it takes the Originality as the crucial element - besides the spiritual content of works, there should be Originality in expression. Thus the Originality is the crucial requirement for the works and copyright protection, and has significant meaning in researching the Originality essentials.Base on the characteristic and function of the Originality, the importance in copyright system and the relationship with creation, this thesis proposes an attitude how to deal with the Originality essential of works in our copyright theory with the review of two systems of copyright protection and the analysis of the construction of Originality of works in current China. It focus on the analysis of the traditional Originality essentials of works, and points out that Originality firstly means independent creation and certain creativities as well to present the difference from existing works. It is the basic principles, purpose and significance of copyright protection and the personalization of creative activities that form the composition of the creativeness. In addition, it analyzes the famous judicial precedent of Originality in copyright practice- Dead Sea Scrolls Case, and points out the operation of Originality criteria in judicial practice of copyright. Facing the tort issues in such special works as Dead Sea Scrolls, the judgment form Israel court has leaded to the widely arguments all around the world. Meanwhile, in order to solve the special problems of Dead Sea Scrolls Case, Professor David Nimmer, the famous copyright expert in USA, proposes a new essential of Originality- intentionality. He takes the author's intentionality as the core essential to decide whether the works can have Originality and then have the copyright or not. However the Nimmer's notion seems to be over-idealized, because it intends to seek the subjective motivation of the author, which is obviously hard to achieve by the judicial departments. But there is no doubt that the traditional Originality essentials have some drawbacks on solving this kind of problem. Nimmer's new essentials only rises up the threshold of copyright protection on special works such as Dead Sea Scrolls Case, which has the innate advantages on judging these kinds of works. In summary, the compassion of Originality should consist of three aspects: first, the works is created by the author independently, not plagiarizing others. Second, the works should have certain creativeness to present the differences from existing works. Third, Nimmer's intentionality essential could be considered as an exclusive criterion. At last, this thesis points out that the Originality is an eternal topic in copyright system, and the change of the content of copyright leads to the fluctuation of Originality criteria, which will be infused by the development of modern society.