以独创性为标准判断临摹作品的著作权法保护

临摹本质是事实行为,其本身是追求与原作品高度相似,其行为本身不应当成为判断其结果的依据,著作权法对于作品是否给予保护的连接点也是以结果来进行判断。因而作品本身是否具有独创性应当是判断作品是受到保护的唯一标准,即使作者付出了大量努力,但作品本身没有独创性,也不应当给予保护。

The Judgment of Copyright Protection with Originality- based Imitated Art Works

Imitating is essentially the fact that the producer tries his/her best to make the art work highlysimilar to the original work. His/her intention should not be the basis to judge the results. Similarly, based on the copyright law, whether the works should be protected is also in line with its results. Therefore, whether the works is originality - based should be the sole criterion to judge whether the works should be protected or not. E- ven if the artist has made great efforts, yet the work itself is not originality - based, it should not be protected.