On The Protection Of The Adaptation Right

Adaptation is an important form of literary and artistic creation. Adaptation right is aright of the copyright owner. At present, the adaptation of infringement cases caused bydiversified means continues to emerge in the judicial practice,which needs to be solvedurgently. However, the domestic law on the protection of adaptation right is still in the initiallevel of legislation and thus, the current law is unable to give perfect protection to the right ofadaptation. Xuehuake v. Yanyaya copyright case, one of The Beijing High Court released tenmajor intellectual property rights cases in2012, is a response to practical problemsencountered in the protection of adaptation right. The case which is used to discuss the issueabout protecting adaptation right will be an introduction to this thesis. And the paper consistsof four parts.Chapter one is a part of bringing up issues. First of all, this section mainly introduces andanalyzes the facts, judicial process, and results of Xuehuake v. Yanyaya copyright case. Then,the case inspires for some questions that should be noted on the protection of adaptation right:What are the characteristics of adaptation? Can we judge the behavioral nature of the drawingof photographic works by using the characteristics of the adaption? What is the scope ofprotection of the rights of adaptation? In this case，we will concern whether making adistinction between adaptation and using of illegal deduction works is necessary for thedistributions of responsibility and how infringer should bear civil liability for theirinfringement act. These problems will be carried on detailed analysis in the latter part ofarticle.Chapter two is the legal analysis on right of adaptation and adaptation behavior. The firstpart of the section mainly analyses the legal concept of adaptation right, which is mentionedin the provision of the tenth term of copyright law. A recommendation is given to limit theconcept of "change" for controlling the improper expansion. Moreover, it has a comparison of“adapt” and “copy” in order to clarify the meaning of the word "adaptation”. It is all forreviewing the conception of adaptation right and bringing some relative suggestions.Secondly，This section points out that the freedom of creating new works based on theoriginal works is aiming at the behavior of adaptor. After that is the discussion of thecharacteristics of adaptation. Secondly, it is the analysis of the feature adaptation of behavior.Two features are proposed, namely dependent and faithful adaptation of the original works; adaptations are re-creation. These features are actually the keys to judging whether a certainbehavior is an adaptation or not.Chapter three is the protection limits of adaptation rights. Regarding of the scope ofprotection on the adaptation rights, and from an point of authorization, making use of a newadapted works must get the permits rights of the original works possessors. From theperspective of the right limits, the limit of the adaptation right mainly reflects on the means ofthe rational use. It is pointed out that the adaptation behavioral under the rational use shouldbe protected and not subject to interference by adaptation rights.Chapter four is the legal liability of violation the right of adaptation. This is the last partof the article, and is often listed on the last part of the verdict. The protection of right ofadaptation will be put into effect to the legal responsibility. This segment is primarilydeployment analysis from three main ways to bear the responsibility：Compensation, Apology,Stop the infringement. In the way of compensation, we pay attention to the issue of thelimitation of action of the compensation for the infringement damage; the key point is focusedon the compensation litigation prescription of continuing infringement state. The thesisproposes to increase “start counting the litigation prescription since the moment that theauthor knew the offender", and introduces the principles of right invalidation. In the way ofapology, it is point out that when (the infringer) violation of the protection of the integrity ofthe works right in the using process of adaptation or after adaptation, it should apply toapologize according to different circumstances. In the way of stopping the infringement, uponthe question whether it should destroy the originals after stopping the infringement, this paperconsiders that we can choose a more economical solution to solving disputes, not only bydestroying the originals to prevent further loss.