Where is the originality boundary of NFT? What is the role of original identification in tort litigation?

Published on 1 Months ago   180 views   0 Comments  

Original title: Originality: not all NFTs have a "soul"

Core tip: if there is no originality, there is no work, and if there is no work, there is no NFT

The originality of digital works is extremely important for the digital collection platform. Originality is the premise to ensure that digital collections are protected by copyright law and a powerful tool to ensure the scarcity of digital collections. At the same time, the majority of digital collection platforms should also pay attention to,Originality is not the "savior", and it cannot be the defense of tort litigationใ€‚ Therefore, we should do a good job of pre IP review to avoid worries.

1ใ€ Why is originality so important?

Article 2 of the regulations for the implementation of China's copyright law stipulates that "works referred to in the copyright law refer to intellectual achievements that are original and can be copied in some tangible form in the fields of literature, art and science." It's not hard to see,"Originality" is the key to judge whether an intellectual achievement can become a "work"ใ€‚ Only "works" in the sense of copyright law can enjoy the narrow Copyright (as opposed to adjacent rights), and its producers can be called "authors" in the sense of copyright law. So,Originality is the essential element to judge whether an intellectual achievement can be protected by copyright law, and even the cornerstone of the whole copyright legal systemใ€‚

"Originality" is not unique to China's copyright law. Although there are many differences in copyright systems around the world, it has become a recognized fact in copyright legislation and theory that only "original intellectual achievements can become the object of narrow copyright protection". Therefore, there is a problem in practice. Although "originality" is a recognized concept, butThe judgment of originality varies from country to country, and there is no "general judgment rule of originality"Therefore, it is particularly important to explore the originality judgment standard in line with the actual situation of our country.

As we have always stressed before, the theoretical framework of intellectual property law seems to be universal all over the world, but it is still "highly personalized" in the specific details, and the remedy must be tailored according to the situation of domestic judicial practice.

For the identification of originality, the powerful view of Chinese academic circles is that "originality" can be decomposed into"Independence"and"Chuang"Two dimensions. Visual effect can be used to simply judge the recognition standard of originality. (as shown in the figure below)

"Independence" means independent completion, which means that the work is not the result of plagiarism, but comes from the author himselfใ€‚ In practice, "independent completion" usually includes two situations: first, a work is independently created by the author from scratch; Second, on the basis of the existing works, the author re creates, resulting in new works that can be objectively identified and not too subtle differences from the original works.

"Creation" means creativity, that is, a work is not just a mechanical or technical achievementใ€‚ In Anglo American law countries, the early judgment of "creativity" adopted the standard of "sweating on the forehead", that is, as long as a certain intellectual achievement has value and condenses independent and hard work, even simple physical work or very simple mental work (such as compiling a telephone book), it can be regarded as creative. However, the standard of "sweating on the forehead" has long been fiercely criticized by the academic and practical circles. Now it has been abandoned by the common law. The judgment standard of creativity in China's copyright law is much higher than that in the common law countries, but lower than that in the patent law. (as shown in the figure below)

2ใ€ Where is the originality boundary of NFT?

Since the "NFT China first case", the operators of digital collection platforms should pay special attention to the potential Copyright Disputes of digital collections. At present, the mainstream forms of picture digital collections in China mainly include the following: first, 3D model making based on real objects, such as cultural relics, works of art, cars, aircraft and rockets, so as to form digital collections; Second, parody or secondary creation based on the existing IP to form a new image and then form a digital collection; Third, digital copying based on existing paintings and photos to form a digital collection; Fourth, get the existing IP authorization to form a digital collection; Fifth, completely create new digital works from scratch, and then form digital collections. Among them, the first three categories need to focus on the boundary of originality of works, which are limited by length,This paper focuses on the originality of 3D model digital collections and copying digital collectionsใ€‚ The boundary problem of other digital collections can be briefly referred to the figure below.

These two types of digital collections are mainly divided into two cases.First, a digital 3D model digital collection with 100% accurate and equal scale reduction of the original; Second, the digital 3D model digital collection that partially modifies and processes the original, or the digital collection made after copying and computer hand drawing the originalใ€‚ These two situations should be discussed in categories.

1. Originality of accurately copied digital 3D model

In the first case, although there are no relevant judgments in the field of domestic digital collections, similar judgments have appeared in other fields, which can be used as a reference for the discussion of the originality boundary. In the "fighter model case", a fighter design unit made an accurate and equal scale reduction model of the fighter and authorized the plaintiff company a to have an exclusive license to manufacture and sell such scale reduction models. The defendant company B manufactured and sold the scaled down model of a fighter without permission. The plaintiff believed that the fighter model manufactured and sold by himself was a model work stipulated in the copyright law, and the defendant's behavior infringed the copyright of the model work. After retrial, the Supreme People's Court of this case held that no matter how hard the manufacturer of the equal scale reduction model of a fighter has worked in the equal scale reduction process, it has not created new points, lines, surfaces and geometric structures through its own selection, trade-offs, arrangement, design, synthesis and description. The equal scale reduction process only accurately reproduces the original appearance of a fighter on another carrier,There is no new expression, and the process is not original, the scaled down model is still a copy of a fighter,It does not constitute a model work protected by China's copyright lawใ€‚ (see Supreme People's court's [2017] Supreme People's court civil judgment No. 353)

thus it can be seen,China's judicial practice tends to recognize the model with accurate reproduction and equal proportion reduction as only the copy of the original, which is not original and cannot be recognized as the model work protected by the copyright lawใ€‚ There are similar judgments abroad. For example, in meshwerks v. Toyota Motor Sales USA. 528 f.3d1258 (2008), the plaintiff accepted the entrustment of a third party to create a digital grid model for the car designed by the defendant. Before making the model, the plaintiff measured the car accurately, and then used software to convert the measured data into a digital model. The focus of the dispute between the plaintiff and the defendant is whether the original digital 3D model without any decoration can be recognized as original and thus protected by copyright. The Court acknowledged that creating the 3D model of the car required a lot of time and skill, but stressed that the originality of the work should be carefully evaluated,The final result of this case is to deny that the original 3D model of the car without decoration is original, so it can not get the corresponding copyright protectionใ€‚

Referring to the above cases, we must be clearly aware ofThe 3D model digital collection obtained by accurately and proportionally copying and reducing the original object may not be recognized as original in the sense of copyright lawใ€‚ It is still a copy of the original, except that it does not enjoy the corresponding copyright protection. If the original is copyrighted, the producer of the digital collection and the digital collection platform mayInfringement of the right of reproduction of the originalใ€‚

2. Copying, electronic hand-painted digital collections, with appropriate modifications

Originality of digital 3D model

In the second case, the newly formed digital 3D model or digital collection made by copying and computer hand drawing undeniably contains the content created by the author, so it may be deemed to be original. However, we still need to pay attention to the border issue. At present, there have been similar cases in China in addition to digital collections. For example, in the "portrait copying case of a star", the plaintiff created a computer hand-painted painting of a star based on the stills of the TV series of a star. The computer hand-painted painting is generally similar to the original stills, but the name of the TV series below the original stills is removed and the overall tone is slightly adjusted. The court held that the copying from photography to painting really requires the painter to reproduce the picture image of the photographic work by virtue of his personal observation and understanding of the photographic work, butThe paintings produced in this process still need to have a minimum of originality in order to be protected by copyright lawEspecially under the background of the development of modern digital graphics processing technology, this kind of production should achieveDistinguishableใ€SubstantiveChange can meet the minimum requirements of originality. Therefore, the court held that the painting made by the plaintiff based on the stills was only a copy of the stills,It is not original in the sense of copyright lawใ€‚ (refer to Shanghai Pudong District People's Court [2019] Hu 0115 min Chu No. 6515 civil judgment)

Referring to the above cases, we must be clearly aware that if we want to obtain the original identification of originality, such as the 3D model obtained by copying the work or making appropriate modifications to the original, and not zooming in / out in accordance with the same scale, thenThe degree of modification should at least achieve distinguishable and substantive changes, otherwise it is difficult to meet the originality standard recognized by the court of our countryใ€‚

3ใ€ Originality is not the "savior"

After discussing the originality boundary of digital collections, we have to face another problem:What is the role of original identification in tort litigation?

We must make it clear that originality is not the "savior". As scholars pointed out, "originality is only the standard to judge whether a labor achievement constitutes a work and whether it is protected by copyright law, not the standard to determine whether the achievement is an infringing work." In other words,Originality can only ensure that your intellectual achievements are protected by copyright law, but it can not become a defense in infringement litigationใ€‚

1. Originality can "guard" intellectual achievements and make them subject to copyright

Protection of law

Only creative intellectual achievements can be called "works" in the sense of copyright law and can be protected by copyright law. This is particularly important in the field of digital collections. At present, the "scarcity" of digital collections is still a big attraction, andScarcity is reflected not only in the characteristics of blockchain technology, but also in the fact that unrestricted replication can be prevented through copyright regulationใ€‚ If a digital work does not obtain the status of work in the sense of copyright law, the digital work is likely to be copied by many digital collection platforms and cast its own digital collection, which greatly reduces the scarcity.

2. Originality cannot be a defense in tort litigation

There is no contradiction between becoming a work in the sense of copyright law and that the work is an infringing work infringing copyright. For a simple example, if there is a famous IP "pancake man", a draws a work according to the image of "pancake man" without the authorization of the IP Party of "pancake man" and casts it into a digital collection. At this time, once the painting of "pancake man" painted by Jia is identified as too similar to the original image of "pancake man" without originality, it can not be called "work". Then a infringes the copy right of the "pancake man" IP party; If this "pancake man" painting of a painting is deemed to have its own originality and is a work in the sense of copyright law, thenAlthough this work of a can be protected by the copyright law, it still infringes the deduction right of the IP Party of "pancake man" (i.e. the right to adapt the work)ใ€‚ In other words, in a tort, originality only affects the judgment of what specific rights are infringed, and does not affect the identification of the nature of the tort. Originality can not become the "savior" and make the infringer get rid of the disturbance of infringement.


As mentioned above, the judgment of originality is extremely important becauseOriginality is the "Guardian" of intellectual achievements protected by copyright law, in the field of digital collectibles, being protected by copyright law often means the continuation of scarcity, which is of great significance to the development of digital collectibles platform. At the same time, it should be noted that,Originality is not the Savior, and it cannot be a defense in tort litigationใ€‚ This requires the majority of digital collectors to conduct IP review before doing good deeds to ensure that they have relevant intellectual property rights, so as to avoid worries at home.

Note: the copyright of all pictures used in this article belongs to the original author. This article is only for learning and appreciation, and should not be used for other purposes.

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