Adaptation Right Scope And Infringement Judgement

The upsurge in the commercial development of works makes the adaptation licenses more frequently,and the dispute over the right of adaptation has also increased.The adaptation right involves many subjects,and the scope of protection is quite vague.There is a long-standing dispute in academic and practical departments on the scope of right that can be controlled by adaptation owners.Therefore,it is necessary to systematically explain and analyze the fundamental issues such as the legislative intent,concept definition,legal institution property,scope and infringement judgment of the right.The first part is the description of the problem.The relevant elements to adaptation rights in Copyright Law do not have a clear scope.At present,there is a problem in the judicial practice that the judgment standard differs in different cases.The second part is to review the evolution history of adaptation right system.The earliest copyright law in China enacted in the late Qing Dynasty and was produced under the oppression of Western powers,most of its contents were influenced by the Civil Law.The 1990 Copyright Law and the subsequent revisions were largely because of the accession to a series of international intellectual property treaties and the requirements of the Berne Convention.This part,from three contexts,the United Kingdom and the United States,the Berne Convention and China,analyzing the evolution of the adaptation right system,and ascertaining the legislative process,legislative purposes and legislative intent.The third part,starting from the concept of the adaptation right and the concept of other relevant rights such as reproduction right,alternation right,and the right of integrity,the paper discusses the basic concepts theories and the legislation model of the right.This chapter would provide a conceptual foundation and a legislative basis.The fourth part is the key content of the whole text,the limit of the adaptation right.Adopting the comprehensive interpretation “behavior-work” method,ascertaining the upper scope limit from work and behavior two perspectives.In the “behavior-right” scope of the adaptation right,this article starts from the definition of “originality” is a requirement for the adaptation behavior rather than the requirement of work,and then discusses the standard of the originality of the adaptation behavior.The adaptation behavior is not limited to the same genre.In the “work-right” scope of the adaptation right,this article discusses “basing on others' work” and “retaining the basic content of the original work” two perspectives,determined that the scope of the “work” right is limited to the “comprehensive expression in the internal structure”.This part also discusses the system of reasonable use,because it restricts the scope of the right of adaptation.The fifth part is the criteria of determining the adaptation right infringement.This paper adds the “expected market” judgment rule to the existing “contact + substantive similarity” infringement judgment rule,and pays attention to whether there is any difference in the reader market between the adapted works and the original works.For the judgement of the adaptation infringement,first ascertaining the scope from the perspective of the “expected market” rule.If not,considering changing the basis of the claim from the adaptation right to reproduction right and then discuss if there is any possibility of contact between the two works.About the judgment of “contact + substantive similarity + source similarity”,the general composition should be selected out to compare whether it constitutes the basic expression of the previous work.