Derivative Works Copyright Research

Derivative works, a special kind of the subject matter of copyright, are defined as works based upon one or more pre-existing works, consisting of modifications which, as a whole, represent an original work of authorship. Although"derivative works"is not a legal term in Chinese Copyright Law, it is wildly held that the provision of Article 12 of Chinese Copyright Law is a general rule for derivative works on the ownership and the exercise of copyright. However, this rule is too simple to solve all the problems rising from the ownership and the exercise of copyright of derivative works. Through analyzing relevant problems on the copyright of derivative works, the author tries to set an integrated and practical system for the ownership and the exercise of copyright of derivative works.This article consists of three chapters. Chapter 1 is about the reorganization of derivative works, namely what kind of works can be deemed as derivative works and entitled to the protection of copyright. Besides the basic requirement of originality, a work also needs to be"derived"from pre-existing works to be a derivative work. Relying on pre-existing works is most important nature of derivative works. Accordingly, the applicable standard in determining the necessary quantum of originality should be higher. Only in this manner can it be avoid that the author of the first derivative work of a certain underlying work has the power in fact to monopoly over the subsequent creation of derivative works of the same underlying work because of the similarity between the first derivative work and the underlying work."Derive"means using the expression of pre-existing works in a creative manner. In other words, it means adding intellectual labor to the expression of pre-existing works. The last part of Chapter 1 discusses about the protection of infringe derivative works and comes to the conclusion that infringe derivative works meet the requirements of copyright law to be derivative works and thus should be protected as well. However, the authors of infringe derivative works can only prohibit other from using infringe derivative works without authorization.Chapter 2 is about the scope of protection for derivative works, which means that what content in derivative works can be protected. Any work is a combination of idea and expression, but only the expression of works is protectable according to the idea/expression dichotomy. The same standard should be applied to derivative works. As a result anyone can use the idea of derivative works without any restriction. The expression that originates from the underlying works is intelligence labor achievement of the author of the underlying, to which the authors of derivative works should not have any right other than using it under the authorization of the author of underlying works. The expression in derivative works that are not rely on the expression of underlying works is intelligence labor achievement of the authors of derivative works. Authors of derivative works are entitled independent copyright over such expression.Chapter 3 discusses the exercise of copyright of derivative works. Starting from the analyzing of the provisions of Copyright Law, it is concluded that owners of derivative works needn't get authorization of owners of underlying works to exercise the copyright over derivative works as long as the exercise the copyright does not infringe the copyright of underlying works. Chapter 3 also discusses the specific boundary of exercise the copyright in two angles, namely moral rights and economic rights.