On The Legal Protection Of The Copyright Of The Second Creation Works

As a way of literary creation,re-creation has a long history The progress of science and technology and the popularization of information network provide fertile soil for re-creation.The vigorous development of re-creation has become an indispensable part of cultural undertakings.With the emergence of a large number of secondary creative acts,the disputes over copyright between them and the original works that rely on them have become increasingly prominent.How to protect the copyright of secondary creative works,encourage the development of cultural undertakings and realize public interests has become an urgent topic to be answered.This article attempts to analyze the problems existing in the protection of second-creation works from the perspective of judicial practice,analyze the jurisprudence of the protection of the copyright of second-creation works,and find a variety of ways to protect the copyright of second-creation works,so as to contribute a little to the freedom of re-creation.This paper is divided into four chapters.Because there is no provision for re-creation in China's legislation,when dealing with the copyright of re-creation,we should use the existing system to solve the problem.In different cases,judges may choose different legal systems to judge the copyright of re-creation according to the different opinions of the plaintiffs and defendants.One way is to invoke the system of reasonable use to protect the space of secondary creation by restricting the copyright of the original works;the other way is to deal with the copyright problem of secondary creation equally from the conventional infringement judgment fornula of "contact" and "substantial similarity",but this way neglects the characteristics of secondary creation and can not solve the problem of secondary creation and "substantial similarity".The conflict between the original works.In fact,the difference between the two protection ideas reflects the lack of domestic understanding of the copyright of re-creation and the perplexity of protection.The reason why we should protect the copyright of the second creation works is that the second creation works are original.Originality is the precondition for the protection of works by copyright law.Secondary creation is not simply to copy the content of the original work,but to add a lot of original content on the basis of borrowing the elements of the original work,so as to obtain new works.Secondary creation meets the requirements of originality.However,originality does not prove that the second creator did not infringe copyright.There may be conflicts between the second creator and the original in terms of personal rights and copyright.How to resolve conflicts,balance the rights and interests of both sides,and protect the rights and interests of all parties has become a difficult problem.In order to protect the rights and interests of copyright owners,encourage cultural creation and dissemination,and prosper and develop cultural undertakings,it is necessary to protect the copyright of re-creation.It is a good prescription to solve the contradiction between the original work and the second creation through legal means,to protect the copyright of the second creation,and to make full use of the fair use system.At the same time,there are still two problems in the current fair use system of the Copyright Law in China:the closed design of laws and the ambiguity of inspection standards.It is necessary to take appropriate measures to optimize and solve them in order to play a better role.All roads lead to Rome.In addition to the protection of the legal system,the market needs more ways to solve the problems conveniently.There are two main ways:first,the use of knowledge sharing agreements,which since its inception to encourage secondary creation,circulation of cultural works struggle,development today,its concept has been accepted by more and more countries and regions.The second is to build a balanced compensation mechanism,which is not yet mature,but attempts to build a community of economic interests through economic means,in order to eliminate the contradiction between the original and the second creation,and give a wide space for the second creation.