Research Of The Derivative Work Protection

Derivative work refers to the new work with innovation created based on the existing works. Due to the utilization for the original works and the originality generated in the "second creation", derivative work becomes one type of special work protected by Copyright Law. Because derivative work has no involvement in the individuality and property interests of the author of the original work, the author of the derivative work holds the interests brought by its copyright and the freedom of derivation for the public. Yet the nature of multiple interests of derivative work also makes such matters as the identification of the ownership of copyright, utilization and benefit distribution of derivative work more complicated. In reality, it frequently occurs that many derivative works are created without the permission from the original author and thus cause copyright disputes, maybe accompanying with the infringements to the reproduction right of the original author and the right of keeping integrity of the original work. Whether or not should Copyright Law protect the derivative works generated in the above mentioned circumstances? The theoretical cycle and the instances of legislation of various countries all have given different answers. In the Copyright Law in force of China, the term of "derivative work" has never appeared and the definition to and the protection rules of derivative work have no detailed descriptions either. Therefore, the theoretical discussion on the protection of derivative work is of great realistic value.This paper starts from theory, domestic and foreign legislation and cases, idea of analysis and perform works, concludes constitutive requirement of derivative work, then demonstrates it with derivative work generated by classical deductive behavior. After that, it discusses accession theory’s application towards deductive works protection by introducing the theory and combining the characteristic of deductive works. Meanwhile, it obtains the key component of protected deductive work based on different deductive behaviors, so that it further clear and definite that derivative work which didn’t get approved by original author is also under protection of Copyright Law. At last, it describes five kinds of deductive works protected modes without permission and finds that accession theory is better, with that it puts forward some suggestions for perfecting our derivative work protection mode through application of appended theory. The first part of this paper summarizes research status of main problems on derivative works at home and abroad and comes up with practical significance of researching derivative work protection. The second part summarizes components of derivative work concept by differentiating and analyzing scholars’definition to derivative works. It also discusses the protection foundation of derivative works. The third part discusses two constitutive requirements of derivative works, namely utilitarian and originality. It also makes demonstration by typical derivative works and introduces accretion theory according to characteristic of derivative works to discuss feasibility suitable for derivative work protection. The fourth part defines the most controversial unauthorized derivative works in copyright infringement. It combines constitutive requirements of derivative works to discuss the necessity of protecting unauthorized derivative works. It further compares and reviews five unauthorized derivative work protection theories. The conclusion is drawn that accretion theory has the most advantage. At last, it provides references for Chinese legislative improvement by showing international treaties and foreign legislative examples.The fifth part proposes principle advice on completing protection ways with accession theory, combining Chinese legislative status of derivative work protection.