On the Object System of Copyright

The object of copyright, that is, the object protected by copyright, generally refers to the works created by the author and protected by copyright law. Works referred to in China's copyright law, also known as works, refer to intellectual creations that are original in the fields of literature, art and science and can be reproduced in some tangible form. Originality is the basic premise of copyright protection of works, but tangible reproduction is not necessarily the premise of copyright protection of works. I. Principles of Copyright Protection of Works (1) Originality-The essential elements of copyright protection of works are in the field of copyright. Originality, also known as originality, refers to the expression of the author's personality in works, even if the weight of personality is small. "Individuality" means that works belong to a certain type, such as scientific and technological works, literary works, original works and deductive works, and the author's degree of expressing individuality is also different. But there is a one-to-one correspondence between some works. For example, changing the works of Chinese characters into works of Chinese Pinyin, rewriting the works of staff into works of simple notation, and digitizing the works are almost original, and the copyright law protects them as the same works. Some scholars believe that originality should include creativity, that is, works should reflect the author's certain creative height [2]. Scholars who oppose this view believe that the requirement for creativity is to unreasonably move the creative conditions in the industrial property law to the copyright law [3]. Originality is different from novelty, because novelty means that things have never seen before. An original work may be the same as or similar to other works, and it is not novel. A novel may or may not be original. For example, someone writes a phone book that has never been seen somewhere. This work is novel, but the writing of the telephone book is very limited, lacking individuality and originality. (2) Copyright protection of works 1. Principle of Dichotomy of Thought and Expression Copyright only protects the expression form of a work, but not the thought expressed in the work, which is called "Dichotomy of Thought and Expression" in theory. Item 2 of Article 9 of TRIPs Agreement stipulates that "copyright protection extends to expression, but not to ideas, procedures, operating methods or mathematical concepts", which is the legal embodiment of this principle. The forms of expression of ideas in works protected by copyright, that is, words, numbers, symbols, colors, lines and their combinations, can be used by means of reproduction, performance, exhibition and broadcasting. People can borrow different elements of the expression of works individually, such as individual facts, concepts, themes, structures, methods, styles, literary forms, artistic techniques, vocabulary and so on. However, it is illegal to quote all expressive elements that reflect the personality of the work. Copyright does not protect the ideological content of a work. If we recognize the exclusive right of the copyright owner to the ideas themselves, on the one hand, it will limit the spread of these ideas, thus hindering the freedom of intellectual creation; On the other hand, it is difficult to prevent others from using their ideas except patent protection after they are made public. Copyright also does not protect the practical application of the ideological content of the work. People do not need the author's prior permission to use the ideological content of a work. This principle applies to any kind of works, especially to scientific works and technical works. For example, Article 4, paragraph 3, of the American Convention on the Rights of Authors of Literary, Scientific and Artistic Works signed in Washington 1946 stipulates that "the protection provided by this Convention does not include the industrial application of scientific ideas". Of course, using other people's ideas at will may cause some damage, such as hindering the innovation and development of technology. In this case, it can be protected by other intellectual property systems such as patent law and unfair competition law. 2. The principle of combining expression with thought. If a certain ideological content has only unique or limited expression forms, the ideological content and expression forms in the work are inseparable, and the expression forms and ideological content are not protected by copyright [4]. Theoretically, this is called "mergencism". The reason is that the protection of unique or limited expressions by copyright will hinder the spread of the ideas it expresses, which is contrary to the legislative purpose of copyright. For example, Article 29 of the Regulations on the Protection of Computer Software, which came into effect on June 5438+ 10/2002, stipulates: "The software developed by software developers is similar to the existing software because of limited expression options, and does not constitute an infringement of the copyright of the existing software." This provision is the concrete embodiment of the principle of combining expression with thought in our laws. 3. Copyright can't completely protect the ideological content of a work. Article 6 bis of the Berne Convention stipulates that an author has the right to oppose any distortion, division or modification of his work that damages his reputation or other damage. Article 10 of China's Copyright Law stipulates the right to protect the integrity of works, that is, the right to protect works from distortion and tampering; Article 33 stipulates that newspapers and periodicals should obtain the permission of the author to modify the content. Therefore, the content of the work is protected by copyright law to a certain extent, but the protection of the content is limited to others who are not allowed to distort, tamper with or modify it without the authorization of the publisher, and others are still free to use the ideological content of the work [5]. (3) The value, use and expression of a work have nothing to do with copyright protection. Although there may be differences in the value, use and expression of works, they are still protected by copyright. For example, Article 1 of Macao's Copyright and Related Rights System (Macao Decree No.43/99/M) stipulates: "An original intellectual creation in the field of literature, science or art, regardless of its type, expression, value, mode of communication or purpose, is a work protected by the copyright law." The protection of a work by copyright does not depend on its cultural or artistic value (or quality). Value (or quality) and originality are two completely different concepts. Even if the work is worthless, the protection given by copyright law is exactly the same as that given by high-value works, that is, the protection given by copyright law is the most basic and lowest protection. Copyright protects works, regardless of their use. Although some works are created for the needs of certain commercial or industrial activities, copyright still protects them and prohibits any unauthorized copying, distribution and network communication. Differences in expression or methods of works do not affect the protection of copyright. Article 1 of the Berne Convention stipulates: "The term' literary and artistic works' includes all achievements in the fields of literature, science and art, regardless of their forms or expressions". From the perspective of copyright protection, it doesn't matter whether the work is in written or oral form, whether it is performed or fixed on audio and video tapes. In short, copyright law protects all works in the fields of literature, art and science, and does not allow restrictions on the grounds of expression [6]. It is based on this principle that "computer programs do not belong to the category of aesthetic feeling or aesthetics, but have practical functions (such as painting, modeling, architectural design, etc.). ), and expressed in code or other forms. These facts do not affect that computer programs can be the object of copyright protection. " [7] (4) The principle of automatic protection means that works are protected by copyright and are not subject to any formalities. The procedure here should be understood as an administrative obligation in the sense of the elements of copyright protection, such as the registration and storage of works by the competent authorities, and the words "all rights reserved, reproduced must be investigated" or ○C "should be marked. As long as the author has finished his work, he can still enjoy the copyright if he fails to fulfill these obligations. Unlike the case of industrial property rights, copyright comes from creative behavior, not state recognition. At present, only a few countries continue to implement the registration system, taking registration as a prerequisite for the recognition and existence of copyright (such as Nicaragua and Uruguay), or taking registration as a necessary condition for exercising copyright (such as Argentina), or using registration for declaration and providing evidence (such as Dominica). The first two cases violate the spirit of the principle of automatic protection. In addition, according to Article 2 of the Berne Convention, whether fixing in a certain material form is a condition for copyright protection of works, "all members of the Union may stipulate through domestic legislation that all works or works of any particular kind will not be protected if they are not fixed in a certain material form". There are two legislative styles in the world. The legal requirements of some countries (such as the United States) must be fixed (not necessarily by the author of the work) to identify the work and avoid confusion with other people's creative achievements; The laws of other countries (such as China) hold that the fixation of a work in a certain material form is not a condition for obtaining copyright. The difference between these two styles mainly affects the protection of oral works and folk literature and art works. For example, the Tunisia Model Law stipulates that the protection of folk literary and artistic works should not be fixed. This is because folk literary works are part of the national cultural heritage, and their inherent nature is oral communication. If it is fixed, it may make them unable to obtain copyright protection, and may even give the copyright to the person who fixed them [8]. Two. Classification of copyright works Copyright protection works in the fields of literature and art, natural science, social science and engineering technology can be divided into the following categories: (1) Written works refer to works expressed in written form such as novels, poems, essays and papers. Written works include: novels, poems, essays, translations, reference books, periodicals, patent specifications, etc. , scientific and technological information, etc. Braille books, etc. , as well as various works expressed in words, symbols and numbers. (2) Oral works Oral works refer to works of the same nature expressed in oral language such as impromptu speeches, lectures, sermons and court debates. The difference between this kind of works and written works is that the author's thoughts and feelings are not expressed in written form, but described in oral form. The copyright law of common law countries takes fixing oral works on a certain carrier as the premise of protection. However, the civil law countries stipulate that oral works can be protected by copyright without being fixed. (3) Artistic works of music, drama, folk art, dance and acrobatics Musical works refer to songs, symphonies and other works with or without words that can be sung or performed. Musical works with words may overlap with written works, but they are generally classified as musical works. Dramatic works refer to stage performances such as dramas, operas and local operas. Drama is a comprehensive art composed of screenwriter, director, performance, music, art and other artistic elements. In his Copyright Law, Mr. Zheng, a famous copyright scholar in China, believes that a play is a script, not the whole play moved to the stage. The Berne Convention also defines drama as drama. Because the script, as a written form, its basic means is language (words), and the language in the script is mainly lines besides the prompts of environment and action. Although a script can be read like a novel, its basic value is that it can be performed. Quyi works refer to works that are mainly performed in the form of cross talk, quick prose, drums, storytelling, tanci, storytelling and so on. It is the historical heritage of China's traditional culture, and it is also a form of expression widely circulated among the people. Some scholars regard Quyi works as folk literary works. Quyi works can be divided into oral works, musical works and dramatic works according to their forms of expression. Crosstalk, for example, can be classified as oral works; Drums and singing can be classified as musical works with words [9]. Quyi works mentioned in the copyright law refer to the original version of rap art expressed in written form. Dance works refer to works that express thoughts and feelings through the continuous movements, postures, rhythms and expressions of the human body. Dance is an art, which expresses thoughts and feelings and reflects social life through the refinement, organization and artistic processing of human movements. The creation of dance works can be written, spoken or fixed in other forms such as video. There are also many kinds of dance works, such as solo dance, group dance and social dance. Dance works in copyright law refer to dance action design. The copyright law of common law countries requires that it must be fixed in a tangible way to be protected. In civil law countries, Germany, Japan and other countries do not require the fixation of such works, while the copyright laws of France, Italy and other countries take the fixation of works as a prerequisite for their protection [10]. Acrobatic works refer to acrobatics, magic, circus and other works expressed through body movements and skills. Acrobatic art works are the arrangement of acrobats' body movements and skills. Individual body movements or skills can be borrowed by others, but the overall arrangement is protected by copyright law [1 1]. Music, drama, folk art, dance and acrobatic works do not include music, drama, folk art, dance and acrobatic works performed by performers [12]. Performers' performances are protected by neighboring rights. (4) Art and architecture works 1. Art works refer to plane or three-dimensional plastic art works such as painting, calligraphy and sculpture, which are composed of lines, colors or other ways. Painting refers to creating visual images on paper, wood, textiles or walls by means of composition, modeling and color with tools such as pens, knives, ink and pigments, such as oil painting, watercolor painting and landscape painting. Calligraphy generally refers to the art of writing Chinese characters with a brush. Calligraphy is one of the traditional plastic arts in China. Sculpture, sculpture and molding refer to the creation of various space arts with three-dimensional images with sculptable or plastic materials. Generally divided into round carvings or reliefs, or divided into indoor carvings and outdoor carvings. Article 4 of the Regulations for the Implementation of Copyright Law requires that artistic works have "aesthetic significance", that is, artistic works should have aesthetic feeling in the sense of appreciation and evaluation before being protected by copyright. This requirement obviously raises the threshold of copyright protection of artistic works. Taking subjective value as the condition of copyright protection will inevitably make some original artistic works not be protected as they should be. Fine arts can require artistic works to have aesthetic feeling, but it is inappropriate for copyright law to require artistic works to have aesthetic feeling. 2. Architectural works refer to works in the form of buildings or structures. Article 2 of Berne Convention for the Protection of Literary and Artistic Works stipulates that design drawings and three-dimensional works related to architecture are the objects of copyright protection. The World Intellectual Property Organization and UNESCO believe that architectural works should include two contents: the building itself (only referring to the building with original elements in appearance, decoration or design); Architectural design drawings and models. In the legislative process of China's copyright law, due to the opposition of a considerable number of people, the building itself has not been included in the protection object. Subsequently, the implementing regulations of 199 1 Copyright Law explicitly included plastic art works such as "architecture" when defining "artistic works". 200 1 revised copyright law includes it as the object of protection. Architectural works include buildings themselves, such as palaces, temples, pavilions, pavilions, halls and tombs. The appearance, decoration and design of a building are the expression of an architect's aesthetic concept. Because this form may be imitated or copied by others for profit, the law protects its exclusive rights. The appearance, decoration and design of a building cannot be the object of copyright protection without original design elements. Building materials, building equipment and new technologies used in architectural design and construction are not protected by copyright law, but can be protected by industrial property rights. Since the building itself is protected by copyright, the design drawings and models that conceive it should undoubtedly enjoy copyright protection. Copyright not only protects architectural design drawings, construction drawings, models and buildings themselves, but also protects graphic architectural design drawings, construction drawings and models. But the architectural works here refer to the building itself, including the artistic decoration attached to the building. Architectural design drawings, construction drawings and models are protected as plane works and model works [13]. Article 4 of the Regulations for the Implementation of Copyright Law requires architectural works to have "aesthetic significance", just as it is inappropriate to require artistic works to have "aesthetic significance". Architectural works are protected by copyright and have no "aesthetic significance", but they cannot be without originality. (5) Photographic works (photographic works) refer to artistic works that record the image of objective objects on photosensitive materials or other media by means of instruments, such as photos of people and landscapes. According to the Berne Convention, works expressed in a way similar to photography are also protected by copyright law as long as they show originality in composition, selection or absorption of selected objects. However, in natural science, we can record scientific photographs of extremely complex physical phenomena and chemical reactions such as microbiology, medicine, geography, archaeology and astronomy, as well as purely reproducible photographs (such as remakes of documents, books and periodicals, etc.). ) are not creative or original, and are protected by copyright. (6) Movies and works created by methods similar to movies refer to works that are shot on a certain medium and consist of a series of pictures with or without sound, and are projected through appropriate devices or disseminated by other means such as movies, television, videos and CDs. From the way of creation, TV and video works are created in a way similar to film shooting. The creation of film works is a very complicated activity process, including the creation of film literary scripts, storyboards, film music, scenery making, costume design and so on. As well as performance, dubbing, video recording and other procedures. Until the clip is synthesized and finally released. In film works, film literary scripts are not only the basis of film works, but also written works for reading; Film music can also be used as an independent music work; Every shot in a movie can be a photographic work. Television works refer to works that use radio transmitting and receiving devices to spread images and sounds. Such as TV series, TV series, etc. Video works refer to the forms of image expression that use electronic photography technology to record various social activities, or copy performing art works such as drama, folk art, dance, film and television, and make them truly reappear through the playback device. The production process of TV and video works is similar to that of movies, but the carrier used is different from that of movies. The means of projection are different, but its expression should be original. (7) Graphic works and model works Graphic works refer to engineering design drawings and product design drawings drawn for construction and production, as well as maps, schematic diagrams and other works that reflect geographical phenomena and explain the principle or structure of things. Engineering design drawings and product design drawings refer to drawings drawn for construction and production and their text descriptions. Specifically, the engineering design drawing refers to the plane pattern drawn with various lines to illustrate the basic structure and modeling of the engineering object to be made. Product design drawing refers to the plane pattern drawn with various lines to illustrate the shape and structure of the products to be produced. The scope of engineering design and product design drawings is quite extensive, including various engineering design, architectural design, circuit design, water supply and drainage design, mechanical equipment and mechanical products, electronic products, chemical products and other design drawings. These works are usually related to science and technology and are used to meet the needs of architecture or manufacturing. All original engineering designs, product design drawings and their descriptions are protected by law. A map refers to a work that expresses the natural and social phenomena of the earth or other planets with symbols and drawing principles. Although the map is the product of shrinking the objective world by a certain proportion, its production process is by no means a mechanical copy, but a work with its unique personality directly created by rich multidisciplinary knowledge through the thinking processing of surveying and mapping workers, according to certain objective laws and using certain scientific methods. Different people have different experiences and knowledge levels, and the differences in aesthetic taste and personality quality will be directly or indirectly reflected in the maps they compiled. [14] However, "the creativity of maps has certain limitations. As a tool for people to understand nature and society, the accuracy requirements, contents and expressions of maps are generally in accordance with national norms and schemas, or with symbols and expressions formed for a long time. The author only has a lot of creative space in the decoration of the map. This determines that' the contents and expressions reflected by maps with the same theme are similar.' In the practice of "[15]", there are indeed some maps that belong to the data category and are not protected by copyright, such as national basic scale topographic maps and national standard maps (such as standard boundary maps, standard place names maps, mountain and river classification maps, urban status quo and planning maps, etc.), which are produced by the state with a lot of manpower, material resources and financial resources and serve all walks of life. [16] "Sketch refers to a work that expresses a certain concept, principle or phenomenon with simple lines or symbols, such as a human anatomical map. Graphic works also include indicators, charts and so on. Model works refer to three-dimensional works made in a certain proportion according to the shape and structure of objects for display, experiment or observation. (8) Computer software (referring to the copyright of computer software in this series) (9) Folk literary and artistic works refer to the forms of expression created by a social group in the long-term historical process and passed down from generation to generation, which are expressed by the social group or some individuals and reflect their cultural and social characteristics. " In China, folk literary and artistic works are represented by works of writing, dictation, music, drama, dance, art and so on. Living habits, traditional etiquette, religious beliefs and scientific views do not belong to folk literary and artistic works. "[17] Berne convention authorizes member States to give legal protection to folk literary and artistic works through legislation. The specific measures for copyright protection of Chinese folk literature and art works shall be stipulated separately by the State Council, but have not yet been promulgated. (10) Practical works of art (practical works of art) refer to works of art, whether handicrafts or industrial products, that have practical uses or are included in a practical article. The Provisions on the Implementation of International Copyright Treaties promulgated by the State Council defines practical works of art as works of art with inseparable artistic elements and practical elements. For example, beautifully carved vases belong to practical handicrafts, because the artistic modeling of vases cannot be separated from practical ingredients. On the contrary, wallpaper printed with patterns is not a practical work of art, because the separation of wallpaper patterns from paper does not affect the practicality of wallpaper [18]. Article 7, paragraph 4, of the Berne Convention stipulates that the protection period of practical works of art as works of art protection shall be stipulated by the laws of the member countries of the Union; At the same time, it is pointed out that this period should not be less than 25 years from the date of completion of the work. Paragraph 3 of Article 4 of the universal copyright convention stipulates that when it comes to the protection of practical works of art as works of art by contracting States, it is clearly stipulated that the protection period of these works shall not be less than ten years. Article 6 of the Provisions on the Implementation of International Copyright Treaties stipulates that the protection period of foreign practical artistic works is 25 years after the completion of the works. Where artistic works (including animated image design) are used for industrial products, the provisions on the protection period of foreign practical artistic works shall not apply. Because practical works of art are difficult to distinguish from pure works of art, industrial design and arts and crafts, China's Copyright Law does not explicitly list them as protected objects. The fuzziness of the law leads many scholars to believe that it is discriminatory for the law to adopt double protection standards for domestic and foreign works and give foreigners super-national treatment. Some people think that according to the spirit of the Copyright Law and the Berne Convention, practical works of art can be protected as works of art because they have artistic creativity. Practical works of art applying for design can be protected by patent right. (11) With the development of science, technology and culture, other works prescribed by laws and administrative regulations may have new forms of ideological expression, and works that have not been regarded as copyright objects may also be regarded as copyright objects. So there is room for legislation to meet the needs of future development.