| Since the "Copyright Law of the People’s Republic of China"(hereinafter referred to as the "Copyright Law")in 2001 formally established the right of adaptation as an important property right owned by copyright owners in China,the connotation and extension of the right of adaptation have remained relatively vague in legislation.Up to now,the system of the right of adaptation has been constructed for more than 20 years,but there is still no unified understanding of the infringement of the right of adaptation in both academic discussion and judicial practice.On the one hand,the right of adaptation is born out of the system of reproduction right,as the scope of the two rights overlaps to a certain extent,this brings certain difficulties to the distinction between the two rights in practice.On the other hand,the act of adaptation is unique in that it is a re-creation based on the content of the original basic work.When such misappropriation conflicts with reasonable reference and free creation,it also increases the difficulty of determining the infringement of the right of adaptation.The research’s objective of this paper is to solve a series of problems in the judgment of infringement of adaptation right,try to clarify the connotation and extension of adaptation right and determine the scope of adaptation behaviors that can be controlled by adaptation right.From the perspective of comparative law,the paper draws on the excellent experience of the formation of the infringement determination of the adaptation right from outside the territory,improves and refines the "access plus substantive similarity" rule adopted in the judicial practice of the judgment of infringement of adaptation right in our country,and provides a new standard for the judgment of the infringement of the adaptation right for judicial application.This paper is mainly divided into four chapters.The first chapter first expounds the current dilemma of the judicial and theoretical difficulties in judging the infringement of adaptation right in China from the perspective of judicial practice and application of law.The first difficulty is to define the right scope of the adaptation right itself,which is the right basis for the judgment of the infringement of the adaptation right due to its vague concept;Second,because the boundary between infringement of adaptation right and reasonable reference is not clear,how to distinguish the right boundary between creative freedom and adaptation right is hard;The third is how to improve and refine the current rules for the judgment of infringement of adaptation right in China when the current standards for the identification of adaptation right infringement are not unified.The second chapter focuses on the right basis of the judgment of infringement of adaptation right.This part points out that the understanding of the concept of adaptation right needs to examine the two dimensions of "behavior" and "work".On this basis,this paper discusses the relationship between infringement of adaptation right,infringement of reproduction right and plagiarism,and refutes the "extension theory of adaptation right" by using the method of legal interpretation,so as to further clarify the control scope of adaptation right.The third chapter focuses on the analysing of composition of the rules for judging infringement of adaptation right.Through combing and analyzing the rules and methods of judging infringement of derivative works in the United States and China,The paper learns excellent experience and analyses the composition of the rules and methods of judging infringement of adaptation right,so as to provide a reference for the improvement of the "access plus substantive similarity rule" in the judgment of infringement of adaptation right in the fourth part.On the basis of the above analysis,the fourth chapter responds to the specific problems raised in the first chapter and puts forward suggestions on the problems existing in the judgment of infringement of adaptation right.This paper puts forward that the original basic work obligee should control the dissemination and utilization of illegally adapted works by comprehensive copyrights rather than only one adaptation right,then improves and refines the rules and methods of judging the infringement of adaptation right in China from the perspective of improving judicial application. |
