Research On Accession Protection Mode Of Derivative Works

The rules for derivative works on the objects are out of order and the ownership and the exercise of copyright in copyright law are out of balance to solve the bottleneck that Innovation main body through the expression of new combination to breakthrough the old expression patterns. In order to get out of the plight, this article tries to explore the accession rule for derivative works in the civil law system for the purpose of improving the objects,ownership and the exercise of the derivative work system, facilitating continuous creation of literature and art works, settling the right conflict issues among previous author, author of derivative works and social public in judicial practice,and removing the barriers between the research on China's intellectual property law and that on civil law. Besides introduction this article consists of four parts:Part I expounds the drawbacks of current derivative work system. The object rules of China's current derivative work system has been failed to fall into chaos. One the one hand,it is only limited to the four forms of "adaptation, translation, annotation, arrangement", and does not cover the other secondary creation behaviors; One the other hand, in judicial practice, some courts regard the "collation of ancient books” as "arrangement" and give it the status of derivative, so it misunderstand the meaning and departure from the original intention of re-creation. Besides, the ownership and the exercise of copyright in China's derivative work system fail to balance the interests of original author, derivative works'author and the public, so it is been criticized widely.Part 2 comments of the protection mode of derivative works in order to overcome the shortcomings in the system of derivative works. Firstly, the article argues the existed researches such as on the infringed works, on the mode of negative protection mode of copyright, on the mode of blocking copyright and on the mode of unjustified enrichment have the drawback of out of balance and largely only apply to the unauthorized derivative work and fail to adjust the legal relationship of authorized work. Secondly, in order to further explore the protection mode of derivative works, the article regresses "re-allocate the property interests" and proposes the mode of usufructuary right, related rights and accession mode and argues the accession protection mode is the optimal scheme of reform of derivative works toward the equalized interests.Part 3 mainly demonstrates the proposition of accession protection mode. Firstly, the legitimacy is reflected as follows: Such phenomena as "board accessed painting" and"alphabet accessed paper" in ancient Rome as well as the development trend of the intension and extension of the accession theory provide historic basis for the accession protection rules of derivative works; By working independently from the infringement theory, the accession theory may not result in any infringement behavior and in turn facilitates secondary innovation due to its concept of benefit balance; the accession protection mode can realize the dialogue with the intellectual property law and civil law. Secondly, the feasibility is reflected as follows: the accession protection rules for derivative works can be integrated with the authorship system effectively. It meets the principle of "one thing,one title",can distinguish bona fide accession and malicious accession effectively, can conduct evaluate the expressions in original work and newly added ones like tangible property title, and does not violate the principle of disposition given in the civil procedure law, in the legislation technology, the link mode can realize the coordination of the real right law and intellectual property law.Part 4 mainly builds the rules of accession protection mode of derivative works. Firstly,explicit the object of derivative works and such rules can be made through abstract provisions and open enumeration. The objects of derivative works are that the author on the existing works with behavior of adaptation, translation, annotation, sorting and re creation,with substantial distinguishing and inseparable with the existing works, embodied in the specification or adjunction. Secondly, the article discusses the ownership of the derivative work, i.e. allowing the original author and the author of the derivative work to agree upon the ownership of the derivative work in advance. In absence of such agreement or unclear agreement, the ownership shall be co-owned pro rata. Finally, the article explores the exercise rules for derivative works. Authorization of legal derivative works shall be referenced to the rules regarding co-ownership specified in the Property Law, and shall be made through a written contract and filed with the competent department; the author of an illegal derivative work shall at least be entitled to passive authorship protection with respect to the infringed derivative work, and given that the author of the derivative work has no subjective malicious intention, does not harm due benefit of the original author and involves no social public benefit, the court may order the illegal derivative work not stop infringement, thereby offering positive authorship protection to the author of the derivative work.