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Copyright works vs. the public domain: copyrightability requirements pertaining to the restoration and reconstitution of ancient books under Chinese judiciary opinions

Zhiwen Liang

Keywords: ancient books; Chinese copyright law; copyrightability; originality; idea/expression dichotomy; the merger doctrine; scientific edition

Ancient China has rich classic works. The arrangement, restoration and reconstitution of ancient books preserves Chinese traditional culture; and this involves intellectual skill, judgment and labour as well as painstaking research by specialists. Numerous cases involving the restoration and reconstitution of ancient books are brought to China's courts. The specific legal issues concerning whether the restoration and reconstitution of ancient books in the public domain is copyrightable raise questions about originality, the idea/expression dichotomy and merger doctrine. Although the arrangement of ancient works (raw materials selected, commented on or translated into modern Chinese by the specialist) can be considered as derivative works, the dianjiao edition of ancient works (raw materials selected, corrected, reconstituted and punctuated by the specialist) is necessarily dependent on the fact of whether the nature of the process of restoring and reconstituting ancient works exhibits originality. In order to encourage investment, the interests of the adapter of the ancient books must be protected in a proper manner. Protection of scientific editions of non-copyright texts, which are protected under the German Copyright Act, is not provided by the Chinese Copyright Act. However, the interest of adapters of ancient books is protected as a legal interest (not a legal right) by the Chinese judiciary.

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