The Expansion Of Neighboring Right

With the development of society and technology, numbers of the means to communicate works are growing. The producer provides considerable intellectual labor in the products, which are in the lower original quality. In this case, Copyright Law established the Neighboring Rights to specifically provide protection to them. Now, the Neighboring Rights only protect four rights – the performers rights, recorders rights, broadcasting organization rights and typographical arrangement rights in China. However, the exiting law provisions for Neighboring Rights have been insufficient to solve problems of product, which is offered a lot of intelligent effort but cannot be copyrighted, because of the lower originality or even do not have any originality. In fact, the types of Neighboring Rights are limited; leading to that a lot of products cannot under the protection of Neighboring Rights. However, if we do not protect those who make intellectual effort, the legitimate interests of producers will be subjected to unfair treatment, in order to compensate for the damage the interests of producers, sometimes the court will invoke the principles of Civil Law or the Anti-Unfair Competition Law. All these methods are insufficient. First of all, most of the provisions of the Civil Law are principles. In specific cases, the application of these must rely on the judges’ subjective judgment, resulting in the instability of the results of the decisions. Also, most of non-works cannot equal with “other scientific and technological achievements”. Besides, the constituent elements of the tort requires the presence of the perpetrator subjective fault in Civil Law, however, in copyright law, the subjective aspects of conductor have nothing to do with the constituent of direct infringement, but are affecting whether conductor should be liability. Moreover, if it involves the unauthorized use of intellectual product between companies, the court may apply the Anti-Unfair Competition Law; if it does not occur in a competitive relationship between enterprises, between enterprises and individual, between the individual and individual, because there is no competition between the two, and the Anti-Unfair Competition Law is adopted in a competitive relationship, it is difficult for the court to solve the problems with the Anti-Unfair Competition Law. What’s more, less people regard the products as trade secret. Effective solution is to expand the type of the neighboring rights to the no original pictures, databases and science editions. Because of the lower originality or even non-originality, these products cannot become works that protect by the Copyright Law. If we do not protect them, the producers will not receive anything from their intellectual labor, which in turn will decrease the activity of producers and limit the development of related industries. In addition, a clear boundary between work and non-work will inspire the increase of new works. Therefore, it is necessary to expand the types of neighboring rights. To be specific, first off all, due to the lack of standard in determining the originality, it led to some non-original pictures that are protected as photographic works, but this is not reasonable, in fact, the way protect the record can be regarded as a reference to protect the non-original pictures –by using the Neighboring Rights. Second, the database is composed of information and data, the process to make a database consuming a large amount of intellectual labor. Tough consuming a large amount of labor, it is difficult to protect the database as same as works. Only can the principles of Civil Law and Anti-Unfair Competition Law provide partly protection. Nevertheless, this also have drawbacks, we should distinguish the non-original database from the original database, if the database is original, the method of selection and arrangement of database is unique, the Copyright Law could protect it as work, and if the database is not original, we could protect it by using the Neighboring Right. Finally, science edition is a sort of science activities, such as proofreading the ancient articles, copying ancient paintings, etc. This is important to literary studies and archaeological finds, it needs experts who are equipped with a boatload of experiences and knowledge. If the producer injects her or his own original expression during the process and does not intend to reproduce the original, with the originality that defined by the Copyright Law, the expression could become work and protected by Copyright Law. However, since the purpose of these intellectual efforts is to reproduce the ancient articles, as it is original. According to the Mixing principle, there is only one or limited expression that cooperate to one thought. So the product of these science activities cannot be work. But it is universal common that this process can only be achieved by the experts with plenty experiences. Then the Neighboring Right can be an effective way to protect these intellectual labors.