民间文艺:创作素材?版权作品?

Expression of Folklore: Building Blocks of Expression? Or Copyright Works?

民间文艺作为创作素材是不受著作权法保护的思想。私权保护民间文艺不具有正当性。任何人以独创性的表达或引用等方式留存、保护民间文艺,即民间文艺的传播与创新,是私权保护的内容。民间文艺的再创作,产生法律意义上的"作品",必须符合"独创性"标准。独创性门槛的设定,就是把金子从乱石堆中挑选出来。对民间文艺作品独创性标准的判断,是一个法律问题,也是一个涵盖文艺美学理论和大众欣赏认知的社会事实问题。版权机制理应适用于民间文艺的传播与创新,并激励民间文艺的传播与创新,这是其正当性所在。

Folklore/expression of folklore is unprotected resource that are in the public domain which consists not just of copyrightable works whose term of protection has expired, but also of resources that are collectively owned. Such things as folklore, stock characters, plots, ideas, methods, and facts are unprotectable because they are the building blocks of expression. Likewise, folklore that are not sufficiently original are free for anyone to use in new creative efforts. The eligibility for protection of works inspired by folklore is originality upon that to determine the aesthetic merit of a work of folklore, to be able to separate the gold from the dross. The question is that the higher originality standard makes it easier for copyright law to serve its utilitarian purpose optimally. It is supposed to incentivize beneficial to the protection of folklore as a whole.