A Study On The Definition Of Public Domain Of Copyright Law

As one of the means to protect intellectual achievements,the core of copyright system is to confirm and protect the right of private intellectual achievements.In addition to the tool value of copyright--protection value,copyright itself also contains independent value,which has a remarkable contribution to the transmission of the whole human knowledge and culture.The independent value of copyright cannot be manifested without the reservation of the public domain in copyright law.Different from the concept of public domain in political theory,the public domain and copyright private right in copyright law belong to a pair of dialectical concepts.In the early stage of copyright history,it indicated the basic instrumental value of copyright by claiming the exclusive right should be granted to authors who created the works,the intellectual production via their labor;legalizing the relationship between the author and a work in order to ensure the private rights of the author to work.However,in the process of emphasizing the protection of the author’s private rights,the basic elements that constitute the works privatized by the author are derived from the public domain in which the public can access the knowledge and information in the human society.To define the public domain in the copyright law is an inevitable question in the process of understanding the basic tool value of copyright.There are many ways to define the public domain in copyright law,and the standard of fair use is one of them.Article 22 of China’s "Copyright law"(2010)provides for fair use testing standards similar to the Three-step-test stipulated in Article 9(2)of the Berne Convention for the Protection of Literary and Artistic Works(1979)(hereinafter referred to as the "Berne Convention").In 2021,in the revision of China’s Copyright Law,the three-step test is officially included in the fair use test standard for the first time.The establishment of the principle improves China’s Copyright Law on the one hand,on the other hand it creates a lot of theoretical and practical problems among which the most important problem is how to the draw the line between public domain and private sector.In the legal field copyright law in our country,the study of the public domain has been full of confusions for a long time.The results of trial practice and the theoretical explanations of the propositions often contradict each other.To define the public domain in copyright law,we need to recognize the value of the public domain in copyright law and affirm its role in the development of copyright law first.The exploration of public domain value in copyright law belongs to the question of value judgment,which has multiplicity and complexity.This article starts with Hume’s axiology,and takes Marxist critical law philosophy as the guidance.By combining with Bentham’s utilitarianism thought of "the happiness of the greatest majority",the research goes further to discuss the value of the public domain in copyright law.On this basis,by analyzing the defects of the originality doctrine and the idea/expression dichotomy in defining the public domain in copyright law,this article emphasizes three-step test as a way to clarify the public domain in copyright law.Finally,it returns to the construction and improvement of the three-step test method in China’s copyright law.And looking forward to the development of the reservation of the public domain in China’s copyright law in the future is the final concluded part of the article.