Research On The Open Model Of Works Types In The New Copyright La

In recent years,there have been difficulties in determining the specific types of works in high-profile cases such as music fountains.In the first and second instance courts,different legal provisions were applied to determine the specific types of works,and there is considerable controversy as to whether these "new types" of objects should be directly recognized as works under the catch-all provision of Article 3(9)of the Copyright Law,or whether they can only be judged based on the specific types of works under the first eight items of Article 3,or whether there is no detailed provision to protect these new types of objects.In this regard,the Copyright Law,as amended in 2020,amended the provision of Article 3(9)from "other works prescribed by laws and administrative regulations" to "other intellectual achievements that meet the characteristics of works".This change signifies that China’s system of work types has shifted from a statutory mode to an open mode,which helps to resolve the aforementioned disputes.The new Copyright Law responds to modern technology advancements,but as there are no corresponding implementation guidelines or applicable standards for this provision,it is difficult for judicial practice to determine the scope of application.This thesis starts with the definition of relevant concepts,then analyzes the identification mode of work types from the perspective of jurisprudence,as well as the advantages and disadvantages of the open mode of work types under the new Copyright Law,and then proposes the identification method of the open mode of work types under the new Copyright Law,considering the Berne Convention and the practice and experience of relevant key countries.The specific arrangement of this paper is as follows:Chapter 1 introduces the relevant system of the open mode of work types in the new Copyright Law.This chapter mainly discusses and analyzes the concepts related to works,work type provisions,and the open mode of work types.As the new Copyright Law defines works for the first time,this chapter focuses on analyzing the meaning of works.Chapter 2 analyzes the dispute over the mode of determining work types in the new Copyright Law.This chapter cites relevant cases involving new types of objects and provides interpretations and analyses.The chapter also highlights the controversy over work type determination in the Copyright Law,including the open mode and statutory mode of work types.Based on the aforementioned,it summarizes the difficulties in determining new types of objects,including questions about the originality of new types of objects,obstacles in the application of legal systems.Chapter 3 studies the pros and cons of the open mode of work types in the new Copyright Law.The advantages of the open mode of work types include effective protection of new types of objects,encouragement of creation,and reconciliation of the contradictions between judicial practice and theory.The disadvantages of the open mode of work types mainly include the following aspects: unreasonable expansion of judges’ discretion,unclear protection of authors’ rights,and breaking of legal certainty.Chapter 4 expounds on the recognition model of works types from an international perspective.Firstly,it analyzes and interprets the provisions of the Berne Convention and other relevant international copyright conventions on the model of works types.Secondly,it lists and analyzes the legislation and practice of countries adopting an open model of works types,with a focus on the Yoga case in the United States and the taste of food case in the Netherlands.Finally,it summarizes the experience of countries with an open model of works types in recognizing works,including being cautious about expanding the types of works and balancing the interests of all parties when recognizing works types.Chapter 5 proposes suggestions for the determination of works under the new "Copyright Law" in the open model of works classification.The suggestions include legislative proposals and judicial proposals.Legislative proposals involve amending the "Regulations for the Implementation of the Copyright Law," while judicial proposals emphasize adherence to the definition of works,prioritizing statutory types,drawing on experiences outside the jurisdiction,and cautiously applying the fallback provision.Finally,since comprehensive study of theoretical analysis and judicial practice discussed in the preceding chapters,this paper concludes the identification of works under the new open model of the Copyright Law.At the same time,the paper expresses its expectations for China’s future identification of new types of works under the open model of works.