Research On The Derivative Works

Derivative works,a special kind of the subject matter of copyright,is defined asworks which is a re-creation of one or more pre-existing works,consisting ofmodifications which represents an original work of authorship.“Derivative works”isnot ceremonially used in Chinese Copyright Law,but it is usually considered that theprovision of Article12of Chinese Copyright Law is a general rule for derivativeworks. But the reality of the situation is often more complex，because there are morethan one copyright upon the derivative works. Derivative works are restricted at theexercise of copyright and Original creation by underlying works. The aim of thispaper is to illustrate the definition and characteristics of derivative works, throughanalyzing relevant cases and comparative method on the Originality of derivativeworks. And the author tries to make some legislative recommendations of derivativeworks.The paper is divided into four parts.Chapter1is a discussion on the definition of derivative works. The definition ofderivative works is that a re-creation of one or more pre-existing works,consisting ofmodifications which represents an original work of authorship. The definition ofderivative works on legislation is to list the types of the specific works like adaptedworks and translated works. Rights multiplicity and Relatively independent is thecharacteristic of derivative works.Chapter2is about the standard of derivative works. Firstly, the derivative workscould not only use the idea of the underlying works. Secondly, there is a original expression from the derivative works. Thirdly, the author conclude that a sufficientlygross difference is the standard of originality.Chapter3discusses the exercise of copyright of derivative works.It is concludedthat the owners of derivative works could exercise the copyright without getting thepermission of the owners of underlying works,only when the exercise does notinfringe the copyright of underlying works. The rest part of Chapter3is about theprotection of infringe derivative works, and it is suggested that infringe derivativeworks should be protected by Chinese Copyright Law as well. However, the authorsconclude that the owner of infringe derivative works can only prohibit others to useinfringe derivative works without his authorization.Chapter4discusses some difficult questions about originality. The first part isabout the copying works. The author considers that there is different conclusionsunder different situations, but the copying works is not a type of derivative works. Thesecond part is a discussion of adding punctuations of ancient books. The authorconsiders that this activity is repeating, but not re-creation.