Research On The Legislative Protection Of Magic Performance

The case of Tarantula—plaintiff Yigal Messika v. the defendant Beijing drokeCulture Development Co. Ltd. and the Yang Qi,is the first case in China with the wayof judgment solved the problem of the copyright of magic works, but also the2012national classic intellectual property case, which had a major impact on the domesticmagic protection. The protection of the acrobatics as works is the characteristics of"people’s Republic of China Copyright Law"(hereinafter referred to as copyrightlaw), and few countries in the world adopt this kind of mode. In some cases themagic really meets the definition of work: originality, can copy,intellectualachievement. But because the magic is defined as the works to be protected, copyrightlaw，what can be protected should be the magic show, such as posture to theaudience and the morphology,which overlapping with music and dance.Originallymusic and dance itself is in protection of copyright law. Those which cannot beprotected, including the techniques and movements hidden in device and theprinciple of magic show, are important for the magic shows. So simple so theprovisions of copyright law and no operational, magic can’t face from the practicelayer protection. This article will clarify the advantages and disadvantages of therelevant provisions of magic in China, and make comparison with internationaltreaties, the foreign law,making recommendations related to the legislation of ourcountry.In the first part, I analyze the rules about the magic in copyright law and regulationsfor the implementation of the copyright law, to understand the legislator’s originalintention,and analyze the meaning of magic and the scope of legal protection of magic,and analyze the magician’s right from the performer angle, thus positioning magic andmagician in our law in the system. The second part, I seek common points from all the provisions through the Treatyof Rome, WPPT, the copyright law of Japan, the copyright law of France andinternational treaties and foreign laws about the provisions of magician to analysis ofnational and international for the performer’s regulations, and compare with thecurrent legal system of our country, making reference to the relevant legislation of ourcountry.The third part, I put forward amendments on copyright law of our country,suggesting that make magic, acrobatic art out of work scope, and give the magicianperformer status.As long as it is with the artistic nature of the show takes place in art,even the the performance is nothing about works of literature and art, people shouldbe regarded as performers. Thus we can improve the law of China to protect themagician. In addition, we can use other law system compensating which copyrightlaw can not protect: the patent law to protect magic apparatus which are practical;protective magic apparatus indirectly through the item description; commercial secretsystem to protect magic principle etc.. The third part tries to modify the existingcopyright law and make a complete, comprehensive protection system by otherrelevant legal system to the magic.The main innovation of this paper: firstly, the domestic cases about the magic areonly a few. I analyze the magic of legislation at home and abroad from the first casein China with the way of judgment solved the problem of the copyright of magicworks; secondly,I make the difference between the magic and magic works, andresolve issues of the confusion between magic works and magic show through theexpansion of performers range; thirdly, I try to establish a comprehensive system ofmagic protection with the help of the relevant legal system.