Elgar Intellectual Property and Global Development series
Edited by Nari Lee, Niklas Bruun and Mingde Li
Chapter 5: The concept of originality in copyright law in China and Europe
Originality is a basic, and one of the most important, concepts in copyright law. It determines whether a work can be protected by copyright. It is also a concept that is understood differently in many legal jurisdictions. For example, differing standards of originality may make a work copyrightable in one jurisdiction while the same work may be considered unprotected in another jurisdiction. Within the EU, this diversity hinders the fulfilment of the internal market. Accordingly, the EU and national governments have attempted to harmonize this concept, either by legislating upon the matter or by the interpretations made by the CJEU. During this process, it is notable that the organs of government within the EU must reconcile two legal traditions that cover almost all the countries in the world. These two legal traditions are the Anglo-Saxon common law tradition and the continental European civil law tradition. On this basis, it is argued in this chapter that a uniform interpretation of originality emerges in the EU. China, normally considered as a norm taker, transplanted the doctrine of originality from western countries: the meaning of which is still different in various jurisdictions. The various supreme courts have attempted to formulate a uniform interpretation of the concept. This chapter provides a comparative analysis on the emergence of a harmonized understanding of the originality requirement in the EU, and the emergence of a consensus on the concept in China. In Section 1, the efforts of European policymakers to harmonize the definition and standard of originality are discussed. It is fair to conclude that a uniform concept of originality, namely ‘an author’s own intellectual creation,’ was established through the CJEU’s interpretation. In Section 2, the concept of originality in China is presented with cases in China. In Section 3, a comparison between the EU’s concept of originality and China’s will be discussed from the perspective of norm giver and norm taker. In concluding, this chapter argues that each country may perform both the role as a norm giver and norm taker in the future concerning the shaping of the originality concept.
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