Study on the Originality of Works
|Course||Civil and Commercial Law|
|Keywords||works copyright originality judgment standard|
The originality is a basic concept in the theory of copyright, it is significant incopyright law. But, due to its abstractness and fuzziness，academic circles and judicialcircles have controversy on its definition and judgment standard. Firstly, this paper clearlydefines the position in copyright law, it is not the substantive element of a work, but thesubstantive element for a work to be protected by copyright law, and the protection is inproportion to its highness. According to this positioning, this paper defines the originalityboth from subjective aspect and objective aspect, that is, the personality of authors and theindependence of creations. Then, this paper clarifies the relationship during the originality,creativity and creation. Finally, on the basis of analysis and summary of commonality anddifference about the originality in different countries, this paper puts forward somesuggestions for the judgment standard, that is，in principle of distinction and restriction，to consider the specific factors which includes the independence and the creation of thework itself, under special circumstances we can consider the degree of creationadditionally.