On The Copyright Law Originality

There is a lot of space for us to study the theory of originality,which is an eternal theme in copyright law.Various countries protect works which are originality,but there are no detailed provisions about originality and the standard of originality.Especially,with the development of information technology and network,the standard of originality in traditional copyright law is undergoing some changes.So,it is necessary to re-examine and explore the theory of originality.There are so manyreferences which focused on the standards of originality and determination of originality,but no attention is paid to the composition elements of originality and legitimacy of originality from the point of view of jurisprudence.In this paper,the author studies the provisions of different countries on originality in copyright law,interprets the scientific content of originality,defines the relevant factors of originality,discusses the legitimacy foundation of originality,and reviews China's copyright law and puts forward to the perfect views on it.In addition to a brief introduction,this thesis is composed of six parts.The first part discusses the nature of originality.In this part,the author explains the nature of originality by a new perspective and agrees that originality is the prerequisite of copyrightable works.Judgment of constitutive elements of originality is just a fact,only focuses on the facts described and identified;however,the prerequisite of copyrightable works is a value judgment,which reflects the options of the legislators.So,originality is the prerequisite of copyrightable works.In the second part,author studies originality at a comparative perspective, inspects different norms and values of the system of copyright law in the world,analyses its advantages and disadvantages.Generally speaking,there are two major copyright law systems in the world,that is,copyright system and author rights system.The subject matter of copyright includes not only the artistic works of high artistic value of literary,but also uncreative works.The criteria of originality of British law are independent. accomplishment and sufficient creative input.The criteria of originality of American law are a small amount of creativity.In the countries of Author rights system,they concerned about the economic rights of the author much more than the author's moral rights.In this system,the concept of "creation" is defined that creativity must be engaged in the creation of intellectual activities by the author,rather than the general intellectual activity and simple skills of the workforce.The author's creative activity is the representation of the author's personality,and the work is part o.f the author's'personality.The criteria of originality of French law demands to reflect the author's personality. The criterion of originality of German law insists "creating in a high degree and small copper coin" theory,because the concept of originality is different in different copyright law system and in different countries.At present,the theory of originality of the two systems is merging,but this does not conflict with their own theory of originality.The third part attempts to define the concept of originality.Originality is a concept of no accurate content and clear extension,and there is no explanation whether in legislation or judicial interpretations.So,it is necessary to explain the scientific connotation of originality and to define the relevant factors of originality.In this thesis,the author insists that originality should include the following elements:independent creativity,an independent intelligence process and the author's personality.Independent creativity includes both independence and creative.Originality reflects the independent intelligence process.Originality also means the author's personality.Only the expression of rich personality can be called original expression.Originality, which does not require a high degree of creativity and the work to be certain artistry,is just a kind of" relatively independent" creative.Demand of a high degree of creativity is actually a migration of copyright law and the patent law which quests novelty and creativity,is not scientific in theory and in practice. The doctrine of idea/expression dichotomy as a basis for the determination of originality,carved out of the protected and unprotected boundaries in a sense of metaphorical.There is no protection of copyright law,even if the idea is original.The subject matter of copyright is expression of originality. Copyright does not protect ideas with the deep-seated reasons.Originality does not require a high degree of creativity.The only expression is not originality.In specific cases,when the idea and expression merges,copyright law neither protects ideas,nor expression.The fourth part proves the legitimacy of originality.This part explains the legitimacy of originality from the point of view of jurisprudence. Demonstration of the legitimacy of originality generally seeks to Locke's theory of property rights.Locke's labor theory of value in Locke's labor theory of property rights and the prerequisite of property provided a reasonable proof of philosophy.The fifth part discusses the determination of originality from a technical level.This section introduces two ways to determine originality,which are the doctrine of idea/expression dichotomy and reproduction.The determination of originality is an important issue in judicial practice.Originality is in contact with the doctrine of idea/expression dichotomy.The review of "idea" and "expression" is an indispensable element for the determination of originality. Introduction of the doctrine of idea/expression dichotomy in legislation will be able to provide more clear criteria for judging copyrightable works. Reproduction as a proof method of originality is so operational in practice. Independent creativity which originality requires is a creative process with the author's own expression.Thus,there is no objective and clear criteria.But through reproduction,it can provide a way to proves originality.Namely,as long as there is a copy,the originality will not exist,if there is no reproduction, the originality will exist.Originality and reproduction are actually the two different aspects of a problem.The determination of originality is so important in the copyright law.Originality is the prerequisite of copyrightable works. Originality is also a critical factor in the determination of infringement.The sixth part reviews China's copyright law and gives some opinions on perfection.Originality is a concept of no accurate content and clear extension,and there is no explanation whether in legislation or judicial interpretations,neither to give its exhausted application object,nor specific standards of the originality.As a result,China should base itself upon civil law to built its theory of originality,study the experience of American copyright law,pay attention to our national conditions,and make accurate judgment of the development of copyright law theory.Then,according to the need of the Legislative Council,use appropriate technology to construct our national legal system.The last part is a simple conclusion.