On The Case Analysis Copyright Protection Of Derivative Works Of Folk Literature And Art

In 2014,China issued the “ Regulations on the Protection of Copyright of Folk Literature and Art Works(Consultation Draft)”.For the protection of copyright of folk literary and artistic works,the regulations give more specific provisions,while on the issue of copyright protection of folk literary and derivative works.The Ordinance only gives ambiguous provisions,that is,the exercise of the relevant content of the Copyright Law.Derivative works,as an important part of folk literary and artistic works,play an important role in promoting the continuous development of folk literature and art.Therefore,legally,more comprehensive regulations and measures should be formulated to protect them.In this paper,the typical case published by the court,“Hong Mo et al.v.Guizhou Wufufang Food Co.Ltd.and other copyright disputes ” is the starting point.The core controversy of this case is the originality identification and copyright protection of folk literary derivative works.problem.First of all,explore the connotation of folk literary and derivative works and the relationship between folk literary derivative works and folk literary works.As the name suggests,folk literary and derivative works evolved from folk literary and artistic works.They are works created independently on the basis of folk literature and art.Therefore,they must have certain originality standards.They are different from folk literature and art and are subject to copyright.Legal protection.Secondly,it is clear that the folk literary and derivative works satisfy the conditions of copyright works,the basic principles of independent creativity,the criteria for judging and the division of the burden of proof.Derivative works should be original in order to meet the conditions of the works in the sense of copyright law.The basic principles of folklore derivative works include following the general principles of copyright law,the principle of balance of interests,and the principle of originality higher than the principle of general works.Originality consists of two levels of standards,namely“ independent completion ” and“ creative ”.China's criteria for the originality of derivative works adopt higher standards,namely “ independent completion ” and“ higher creativity ”.In practice,China often assumes the burden of proof of“ creative ” by the defendant.The plaintiff only assumes the burden of proof of independent completion,and this burden of proof is only recognized by the signature on the work.This approach is reasonable,but its shortcomings are obvious.Rationality is manifested in the fact that it is really difficult to prove the creativity of a work.Every creator will advocate that his work is creative,especially for the work that was first created.There is no comparison between the previous works and the lack of reference materials,but only The fact that the signature on the work does not prove its originality can only explain the fact that it is completed independently.Therefore,the original burden of proof is so difficult for the plaintiff of its rights subject,but it is obviously unreasonable to assign its burden of proof to the defendant who is not the subject of the right.For the derivative works independently created by the plaintiff,the resources and abilities of the plaintiff to contact and collect evidence are obviously superior to the defendant.Therefore,it is more appropriate to assign the burden of proof to the originality of folk literary and derivative works.Finally,for the determination of the amount of infringement compensation in the specific case of folk literary derivative works,there are actual loss theory,statutory compensation theory and comprehensive standard theory,which kind of compensation standard is selected according to the actual situation of the case to protect the interests of the derivative works holder.Combined with the objective reality of the case,it is difficult to determine the actual losses of the plaintiffs Fang Hongfuyuan and Deng Chunxiang.The defendant's profit due to infringement is also difficult to calculate.Under such circumstances,the actual loss cannot be applied,but the infringement of derivative works of folklore The statutory compensation is also not related to the provisions of the relevant laws,and it is more appropriate to adopt the comprehensive standard.Starting from the above three aspects,we find and solve the difficulties and problems of copyright protection for folk literary and derivative works in theory and practice,and then find out the countermeasures and measures one by one,and promote the perfection and development of derivative works in legal protection.