An Empirical Study On The Identification Of Originality In Photographic Works

In the context of the rapid development of the all-media information sharing era,there have been a large number of cases involving image infringement disputes.In the process of rights protection,having "originality" is the premise for the work to be protected by the Copyright Law.Therefore,the issue of vague criteria for determining the originality of photographic works has once again attracted the attention of the academic community.However,when the court determined the originality of the pictures involved in the case,it adopted the criteria for judging the "inventive step" requirements.This paper focuses on the identification of "originality" in the adjudication of photographic works,and explores it in combination with theory.Based on the theory of "double-layer protection model",that is,in the Copyright Law of the People’s Republic of China（hereinafter referred to as the Copyright Law）,"photographic works" and "ordinary photographs" are distinguished,the constituent elements of the judgment of the originality of photographic works are summarized in practice,and suggestions are put forward on the criteria for determining the originality of photographic works.The first part is a summary of the development background and theory of the identification of originality in photographic works.Among them,domestic and foreign scholars still dispute the requirement of "creative expression" in "originality".This chapter also provides a comparative analysis of theoretical perspectives between different legal systems,paving the way for the following analysis of the attributes of photographic works.The second part,through the analysis of statutory concepts and scholars’ views,comes up with its own definition,classification and attributes of photographic works.Further clarify the dual nature of the "objective reality" and "subjective artistry" of photographic works,so that when combing through the analysis of the subject matter of the photograph by the court in judicial practice,it is convenient to judge the part that belongs to the "creative" judgment of the photograph.In the third part,through the study of judicial precedents,the court’s criteria for determining the originality of photographic works are classified.It is concluded that the court did not distinguish and protect the "original photo" under the existing system in judicial determination,resulting in the parameterization and conceptualization of the "determination standard",making it a statement of the court to the parties after weighing the value judgment.In the fourth part,under the premise of summarizing the problems in China’s judicial practice,the standard judgment of originality in extraterritorial judicial cases is introduced,and the theory and practice are studied in comparative law,so as to provide suggestions for the determination of originality of photographic works.The fifth part,based on the introduction of the "double-layer protection model" in the legislation,proposes standardized judgment methods from the overall photographic works.It is divided into five frameworks: shooting purpose,shooting object,shooting means,shooting equipment and its parameter setting,and post-beautification,and puts forward suggestions for the construction of a unified original judgment standard in the trial of the case.