论连续画面的独创性认定标准——兼论体育赛事画面的法律属性

The Standard of Originality of the Continuous Images——A Concise Discussion of the Legal Attributes of Sporting Event Images

独创性是作品判断的核心要件,作品和制品的区分标准是独创性的有无,还是独创性的高低,争论颇多。前者是著作权法的直接规定,而后者是法律推论和司法实践的经验总结。从独创性的本质来看,独创性是定性问题,而非定量问题,无关作品的价值。独创性的有无是作品和制品的区分标准,独创性的高低由作品中个性化表达的多少决定,影响作品的保护强度。体育赛事直播画面更多的是一种客观事实的记录,难谓具有独创性。对体育赛事画面录像制品的再创作可以产生独创性。应将体育赛事画面区分为不同客体,准确认定其法律属性,给予其合理公平的保护。

Originality is the core element in the judgement of a work. For works and products, whether the criterion for differentiation is the presence or absence of originality or the level of originality is much debated in academic and industrial fields. From the logical origin of the two views, the former is a direct provision of the Copyright Law, while the latter is a deduction of the law and an empirical summary of judicial practice. In terms of the nature of originality, it is a qualitative issue, not a quantitative one, and has nothing to do with the value of a work. It is the presence or absence of originality that distinguishes a work from a product, while the level of originality is determined by the amount of individual expression of the author contained in the work and only affects the intensity of protection of the work. Live sports footage is more of a record of objective facts and can hardly be considered original, whereas the re-creation of a video recording of a sports event can give rise to originality and thus be considered a work. Sports footage should be distinguished as a different object, and its legal attributes should be accurately identified to give it fair protection.