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Volume 6 | Copyright Object
Concept of works:
The concept of 1. works
A work is an intellectual achievement that is original in the fields of literature, art and science and can be reproduced in some tangible form. Correct understanding of works, should pay attention to the following aspects:
1. Works are intellectual achievements in the fields of literature, art and science. In other words, works must be produced in the fields of literature, art and science. Intellectual achievements in the fields of industry, commerce, agriculture and other fields generally cannot become works, but they may become the object of intellectual property rights such as trademark rights and patent rights.
(2) The work must be the intellectual result of creation based on human behavior. Natural beauty, photos taken by automatic shooting devices, etc., no matter how beautiful, cannot be called works.
3. Works are essentially the expression of ideas. Works are the product of creative activities, and creation is the process by which the author expresses his inner thoughts. Any inner thoughts, ideas, concepts, etc. that are not expressed in some objective form cannot be perceived by others and cannot be called works. A basic principle of copyright law is that only the expression of ideas is protected, not the ideas themselves. For example, Article 9 (2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights stipulates that the protection of copyright extends only to expressions, not to ideas. Because if copyright law protects ideas, it will lead to the monopoly of ideas and hinder the development of human civilization. Ideas can be expressed in many different forms, such as words, notes, colors, shapes, etc., so there will be many different kinds of works.
4. The work is different from the carrier of the work. As an expression of thought, a work is objective, but it is immaterial. It must be perceived by a certain material entity. The latter is the carrier of the work, such as a book. The work and its carrier are not integrated, the same work can be expressed through different carriers, and the copyright owner can also control and use the work separately from the carrier.
Constitutive elements of 2. works
Originality is the essential element of a work, which means that the work is created by the author through independent conception, independent use of skills and methods, and is not produced by plagiarism, plagiarism or tampering with other people's works. Creation refers to the intellectual activities that directly produce literary, artistic and scientific works. Organizational work, providing advice, material conditions, or other auxiliary work for the creation of others shall not be regarded as creation. Even if a work created independently is the same or substantially the same as a work previously completed by others, it does not affect its protection under the copyright law. If two photographers shoot the bird's nest at the same angle one after another, the photos taken will have similarities or similarities, but their photographic works are all created alone, so the same or similar can not be said to be plagiarism. This is different from the requirements of patent inventiveness. In addition, originality has nothing to do with the academic and artistic nature of the work. Academic or artistic quality is the evaluation of the quality of the work, not the composition of the work. Even if the work has no academic or artistic value, it can still be protected by copyright law.
Reproduceability means that the work can be copied in some form, that is, the work can be copied by printing, recording and other means, so that the work can be perceived by others and spread and use. Reproduceability is different from fixity. Fixedness means that the work needs to be fixed on some tangible medium, such as paper, film, disk, etc. According to this view, oral works such as impromptu speeches are not protected by copyright law. China's "copyright law" does not require the fixed nature of the work.
the object of copyright protection:
1. general works
Written works are the most common type of works, which refer to novels, poems, essays, papers and other works expressed in the form of words. The text here includes Braille, numbers, symbols, etc. Therefore, statistical reports, Braille readings, etc. are also forms of expression of written works. Of course, not any works expressed in written form are written works, such as calligraphy works.
Oral works refer to works that are created and expressed in the form of oral language and are not fixed in any material carrier, such as impromptu speeches, lectures, court debates, etc. Oral works are required to be improvised, that is, oral works are not written in advance and then expressed orally, but are created temporarily and on the spot by the narrator without preparation in advance. Therefore, a speech in accordance with a prepared speech cannot be considered an oral work. Written records, recordings, etc. of oral works belong to the reproduction of oral works and do not belong to oral works. It should be noted that not all oral expressions of certain ideas are oral works. Conversation, small talk, conversation, etc. in daily life do not belong to oral works.
3,Music, Drama, Quyi, Dance, Acrobatic Art Works
A musical work refers to a work with or without words that can be sung or performed, such as a song or symphony. Its basic means of expression for the melody and rhythm, such as symphony, songs and so on. Most musical works are expressed in the form of music scores, but not limited to this. For example, some musical works incorporate elements such as sounds in nature, which can only be expressed in the form of recordings.
"Dramatic works" means works for stage performance, such as plays, operas and local operas. Dramatic works refer to the script, rather than a comprehensive art in the form of stage performance, and the stage performance of dramatic actors belongs to the category of neighboring rights. Although dramatic works appear in the form of words, they are different from written works. Their particularity lies in the performability of dramatic works, that is, dramatic works can be expressed through the stage performance activities of actors.
Quyi works refer to works performed in the form of rap, such as cross talk, fast books, drums, and storytelling. Quyi works are the unique regulations of copyright in China, and their rap art is simple and flexible in form. Some have written scripts, which in fact form written works; some have no written scripts, which are expressed by performers in oral form and have the characteristics of oral works. The reason for the separate provision is that the quyi works are created for performance. Of course, a distinction should be made between the copyright of Quyi works and the performer's rights of Quyi works, the latter belonging to the category of neighboring rights.
Dance works refer to works that express thoughts and emotions through continuous movements, postures, expressions, etc. Dance works refers to the design of dance movements, usually in the form of dance records, can also be fixed in other forms. A dance work does not refer to a live dance performance by a dancer, but an actor may enjoy performer rights in a dance work. Acrobatic works of art, refers to acrobatics, magic, circus and other physical movements and skills through the performance of the work.
Acrobatic works of art are designed to meet the requirements of originality and artistic part of the movement. Those acrobatic movements that only embody certain skills without originality and artistry cannot be called acrobatic works of art.
4,Fine arts, architectural works
Art works refer to the flat or three-dimensional plastic art works with aesthetic significance composed of lines, colors or other means such as painting, calligraphy and sculpture. Art works can be divided into pure art works and practical art works. The former focuses on the aesthetic value of the work, and the latter emphasizes the production of the work or the practical purpose of life.
Architectural works refer to works of aesthetic significance expressed in the form of buildings or structures. Not any building can be called an architectural work. The copyright law protects the artistic design of the building as a whole. Therefore, the appearance or spatial layout of the building should have aesthetic significance and give people a feeling of beauty. Architectural works do not include architectural design drawings and building models, which are independent types of works. The constituent materials and construction methods of buildings are not protected by copyright law.
A photographic work refers to a work of art that records the image of an objective object on a photosensitive material or other medium with the aid of an instrument. The creation of photographic works is to select the best moment and the best angle of things to shoot through the modeling means of picture composition, light and color. Therefore, photographic works not only have the artistic image of formal beauty, but also show certain ideological connotation. Photographic works include all photographic works and other works expressed in the form of photography, the former such as portraits of people in the traditional sense, landscape photos, etc.; the latter such as individual lenses in film and films and infrared photography, laser photography or holographic photography and other technologies, multimedia works, etc.
6,Cinematographic works and works created by methods similar to cinematography
Cinematographic works and works created by methods similar to those used in cinematography, also known as film and television works, are works produced on a certain medium, consisting of a series of images with or without sound, and which are projected or otherwise disseminated by appropriate devices. Including feature films, science and education films, art films, etc. A cinematographic work is a continuous-picture photographic product that is dubbed or undubbed on a photosensitive film for easy playback.
Other works created by using similar methods of film production refer to all kinds of films and television films made by combining a series of images and sounds by using similar film production techniques, such as light, electricity, magnetism and other recording, transmission and reception devices, and are the finished master film, master tape or master disc. The film and television works in the copyright law refer specifically to the completed films, not any phased achievements before the completion of the setting, nor are they film scripts. Video products made by recording live performances, conference reports, teachers' lectures, song and dance performances with only video recorders are not film and television works in our country, and their recorders only enjoy neighboring rights.
7,Graphic works and model works
1. Graphic works
Our country also does not belong to the film and television works, its recorder only enjoys the neighboring right. Graphic works refer to works such as engineering design drawings and product design drawings drawn for construction and production, as well as maps and schematics that reflect geographical phenomena and illustrate the principles or structures of things.
(1) Engineering or product design drawings refer to the drawings and text descriptions drawn for construction and production, that is, the use of various lines and colors to illustrate the physical engineering to be built or the production of product modeling and basic structure of the plane pattern and text description. Common are a variety of engineering, clothing, furniture design drawings.
(2) Map works refer to graphic products, such as hydrographic maps, traffic maps, topographic maps, etc., that represent the spatial distribution of natural and social phenomena on the earth's surface in accordance with certain numerical rules and cartographic principles, using graphics, symbols, markers, etc.
(3) Schematic diagram is a graphic product drawn by lines, symbols, colors and other means to illustrate the principle of things with more complex contents or the outline of specific things. It can even refer to all graphics that illustrate certain phenomena or things. For example, the schematic diagram of cabin facilities, the schematic diagram of celestial body operation, the guiding diagram of tourist attractions, the anatomical diagram, etc.
2. Model works
Model works refer to three-dimensional works made according to a certain proportion according to the shape and structure of objects for display, experiment or observation, such as architectural models.
Graphic works, model works and works of art have similar forms, but works of art are usually created for people to watch, while graphic works and model works are based on"Indicative" is the main characteristic of the works (although they may also be used for viewing). In addition, the originality of such works will be limited by scientific and technological factors because they must objectively and truthfully explain the principles, structures or reflect geographical phenomena of things.
8,Other works prescribed by laws and regulations
The history of copyright legislation shows that with the progress of science and technology and the development of society, new types of works will always appear. For example, with the development of electronic technology and network technology, the scope of works extends to computer software and network works. Copyright Act No.Article 3, paragraph 9, establishes such a flexible clause in order to balance the stability and flexibility of legislation. At the same time, this provision is also a manifestation of the nature of copyright law.
2. special works
Computer software refers to computer programs and related documents. A computer program refers to a coded instruction sequence that can be executed by a device having information processing capability, such as a computer, in order to obtain a certain result, or a symbolic instruction sequence or a symbolic statement sequence that can be automatically converted into a coded instruction sequence. A computer program includes a source program and an object program. The so-called source program refers to a high-level computer language written by a series of symbolic assembly instructions or program statements, expressed as a line by line by a string of characters of the statement. A target program, which is written in a low-level computer language and consists of a string of binary numbers.The codes represented by (0 and 1) can be directly embodied as a sequence of electrical pulses used to drive and instruct computer hardware to work. The source program and the target program of the same computer program are the same work. Documents refer to the written materials and diagrams used to describe the content, composition, design, functional specifications, development, test results and usage of the program, such as program design instructions, flowcharts, user manuals, etc.
Computer software is a special kind of work, it has the dual characteristics of both written works and practical tools, and its form of expression itself is often a specific process of directly realizing the developer's ideas. Through the analysis of computer software, it is sometimes possible to redesign programs with the same functions expressed in different types of computer languages, but the cost will be much lower than the cost of creating the original software. This means that the protection of the expression of computer software is as important as the protection of its ideological content, but the protection of copyright law cannot extend to the ideas in the work. Therefore, there has always been a debate about whether to apply patent law or copyright law to protect computer software, but at present, countries generally adopt the way of copyright protection, and the Agreement on Trade-related intellectual property Rights also requires member States to adopt copyright law to protect computer software.
2,works of folk literature and art
Folk literature and art refers to the general name of various art forms formed by people of a certain nation or region through generations and long-term evolution. Folk literature and art works have the following characteristics:
Folk literature and art works are constantly modified and evolved in the long-term inheritance process, and it is often difficult to verify the completion time of the work.
The uncertainty of the author
Folk literature and art works are created by a specific social group from generation to generation. They are the product of collective creation. It is difficult to attribute the works to a certain person. Even if the author of the original work is indeed an individual, it is often difficult to verify because of its long history; even if it can be verified, because the work is often processed by other unspecified people in the process of circulation, the content of the work will change greatly. Therefore, in fact, it is difficult to regard the original creator as the author of the existing work.
Diversity of forms
Folk literature and art works are expressed in various forms, including:(1) oral forms of expression, such as folk tales and folk poetry;(2) musical forms of expression, such as folk songs and folk music;(3) activity forms of expression, such as folk dance;(4) tangible forms of expression, such as folk art, architectural art, etc. However, living habits, traditional rituals, religious beliefs, etc. do not belong to folk literature and art. The practice of international protection of folk literature and art works developed after the 1960 s. Some developing countries took the lead in using copyright law to protect folk literature and art works. In the 1980 s, UNESCO and the World Intellectual Property Organization formulated the "Model Provisions of Domestic Law for the Protection of Expressions of Folk Literature and the Prevention of Undue Use and Other Acts." China's folk literature and art resources are rich in various forms. The protection of folk literature and art works is conducive to the exploration of China's excellent national cultural heritage and the promotion of national culture. Article 6 of China's copyright law stipulates that "the measures for copyright protection of works of folk literature and art shall be separately formulated by the State Council." However, the measures for the protection of works of folk literature and art in China have not yet been promulgated.
In practice, lawsuits involving works of folklore have occurred.
the copyright law does not protect the object:
Copyright law does not give unreserved protection to any part of a work. For those parts of the work that belong to ideas, operation methods, technical solutions, practical functions and facts, the copyright law does not protect them; the elements that are not original in the work are not protected by the copyright law. At the same time, if a work enters the public domain beyond its protection period, its property rights are no longer protected by copyright law. According to the Copyright Law of the People's Republic of ChinaAccording to Article 5, the objects that are not protected by the Copyright Law include the following.
(I) official documents
Specifically, it refers to laws, regulations, resolutions, decisions, orders and other documents of a legislative, administrative and judicial nature, as well as their official translations. These official documents and translations conform to the formal elements of the work and fall within the scope of the work. However, because they are the embodiment of the will of the national legislature, administrative organs and judicial organs, are closely related to the country's political, economic, cultural and other activities, involve social public interests, and belong to social public resources. These documents should be disseminated as soon as possible to facilitate public awareness and use. It should be noted that only"Official official translation" is not protected by copyright law. If other units or individuals other than the official translate laws and regulations, these subjects still enjoy the copyright of the translated works.
(II) Current Affairs News
Current affairs news refers to the simple facts reported by newspapers, periodicals, radio stations, television stations and other media. Current affairs news often simply reflects the existence of certain objective facts, and makes true or objective disclosure of the occurrence, development and process of events or facts. Its purpose is to make the news quickly known to the public, so it should not be protected by copyright law. However, if the current affairs news is processed as necessary and the reporter's summary and comments are added, it should be considered that the reporter has paid creative work. This kind of news is not pure factual news and should be protected by copyright law.
(III) calendars, universal tables, universal tables and formulas
Calendar refers to the Gregorian calendar or the lunar calendar using the year, month, day calculation method, in our country also includes the individual minority chronology method, they have been recognized as a scientific basis, can accurately calculate and express the time and solar terms, such as perpetual calendar.
General table generally refers to the number, symbols and other elements, reflecting a certain relationship between the chart, they are commonly used work, life tools, such as the periodic table of elements, function tables and so on.
A generic form is a form of text or numbers that is generally applicable and drawn for a specific purpose of use, such as a generic invoice, a generic accounting book form, etc.
The general formula refers to the equation that has been generally recognized by numbers and symbols to represent quantitative relations, such as various mathematical, physical and chemical calculation formulas.
The calendar, general numerical tables, general forms and formulas are usually the revelation of the objective laws of things and are the common wealth of mankind. They should not be used exclusively by anyone, so they cannot be protected by copyright law.
It is worth noting that,Before the revision of the Copyright Law in 2010, Article 4, paragraph 1, stipulated: "Works prohibited from publication or dissemination according to law shall not be protected by this Law." Article 4 of the revised Copyright Law is amended to read: "Copyright owners shall not violate the Constitution and laws or harm the public interest in the exercise of copyright. The State shall supervise and administer the publication and dissemination of works in accordance with the law." This means that prohibited works can also be protected by copyright law, and their authors have the right to prohibit others from using their works without their permission. Of course, the publication and dissemination of prohibited works itself constitutes an illegal or even criminal act, and even the author is not allowed to exercise the corresponding copyright at will.
Source:WeIP intellectual property ecosystem