September 2023
Di Wu and Teresa Huang
The work is the most central concept in the Copyright Law and is the prerequisite for the creation and existence of copyright, which determines the scope of the object towards which the subject of right exercises the right. However, it is difficult to define the definition of a work and its boundaries. Most countries have adopted the form of enumeration to clarify the works in the Copyright Law. Article 2(1) of the Berne Convention for the Protection of Literary and Artistic Works (hereinafter referred to as the Berne Convention) states that the term “literary and artistic works” includes all productions in the fields of literature, science and art, regardless of the form or manner of their expression. Article 3 of China’s Copyright Law stipulates that the works referred to in this Law are intellectual achievements in the fields of literature, art and science that are original and capable of being expressed in a certain form, including: (1) written works; (2) oral works; (3) works of music, theatre, opera, dance and acrobatic art; (4) works of fine art and architecture; (5) photographic works; (6) audiovisual works; (7) engineering design drawings, engineering design drawings, product design drawings, maps, diagrams and other graphic works and model works; (8) computer software; (9) other intellectual achievements in line with the characteristics of the work. However, with the continuous development of science and technology, new types of works will continue to appear, and it is difficult to list them all. We can summarize the characteristics of works in conjunction with relevant provisions of the Copyright Law, so that we can better judge whether the subject matter of the dispute is a work when we encounter a dispute, and thus deciding whether relevant protection provisions of the Copyright Law can be applied.
I. Characteristics of Works in the Copyright Law
Combined with provisions of the Berne Convention and China’s Copyright Law, it can be summarize that works in the Copyright Law generally have the following four characteristics: Firstly, works refer to the intellectual achievements in the fields of literature, art and science created by citizens, legal persons or unincorporated organisations, and they are a kind of expression of thoughts, feelings and opinions. Secondly, it should be original. Creation, which is a kind of mental labour and intellectual activity, can directly produce literary, artistic and scientific works. Thirdly, it should be replicable. Copyright is an intangible property right that needs to be presented and reproduced in the form of a carrier in order to be better protected through the Copyright Law. Fourthly, it should not violate the law. That is, it does not belong to the content or form that is expressly prohibited by law. This paper focuses on “originality” and “reproducibility” to explain.
II. Originality of Works
Originality is the most important characteristic of a work. Originality limits the scope of works protected by the Copyright Law. A work protected by copyright should be the result of converting abstract ideas and inspiration into concrete content through the intellectual labour of the author. The originality required by the Copyright Law shall contain two meanings: firstly, the work is created independently by the author; secondly, the work must have a certain degree of creativity, expressing the author’s unique personality and thoughts, rather than being a simple reproduction, copy or collection of materials. In the case of Hong Fuyuan and Deng Chunxiang v. Guizhou Wufufang Foods Co., Ltd. copyright infringement dispute, the plaintiff, Hong Fuyuan, created Twelve Harmonious Coexistences, a painting in which the tails of two birds overlap, adopting the natural and geometric patterns of the traditional art of batik and connecting them in the middle with the patterns of copper drums. The work involved added to the shape of the bird, enriching the lines of the bird’s eyes and beak, incorporating the author’s personal originality into the bird’s neck and feathers, and the copper drum pattern in the middle was also different from the traditional batik art pattern, making the bird figure more vivid and evocative. According to relevant provisions of the Copyright Law and Regulations for the Implementation of the Copyright Law, the painting Twelve Harmonious Coexistences created by the Plaintiff in this case belongs to the derivatives of the traditional batik works of art, and is the inheritance and innovation of the traditional batik works of art, which is in line with the characteristics of the works protected by the Copyright Law, and is protected by the Copyright Law to the extent that it has the originality of Hong Fuyuan. It can be seen that even in the protection of folklore works, it is necessary to clarify the conditions of originality of the protected works.
III. The work must be reproducible
Reproducibility is a prerequisite for the recognition of a work. A work is the result of the author’s creative act and creative process, an expression of abstract thoughts and ideas formed into concrete content and demonstrated in the appearance, which needs to be fixed through a carrier. Firstly, the author’s creative result must be reflected on a tangible material carrier. That is, the work should be expressed through some form in order to be objectively perceived by the public, such as performance, broadcasting and projection. It is also clear from this that the Copyright Law protects the form of expression of a work rather than the idea. Secondly, a work can be fixed and reproduced on a tangible material carrier. That is, the act of copying produces a copy of the work on a tangible carrier. For example, the printing of books by printing houses and the distribution of film and CDs by production companies are typical acts of reproduction. On the contrary, if the work is not fixed on a tangible material carrier in a relatively stable and durable manner, the act of reproduction cannot be considered to have taken place.
From the above, it can be seen that in practice, in order to confirm whether an expression of ideas can be the object of protection under the Copyright Law, the first thing to do is to analyse whether the expression of ideas meets the characteristics and definitions of the so-called “work”, so as to clarify the scope of one’s rights.
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- Series of Articles on Copyright Protection (3) ─ Overview of Neighboring Rights (Mainland China)
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