On “Having Fixed” Being Not an Element of Copyrightability for the Film Works
XIONG Wencong;School of Law, Minzu University of China;
Recently several judicial decisions have held that "having fixed" is a copyright element for the film works because the Article 4 of the Regulations for the Implementation of the Copyright Law of the PRC describes the film works as "filming on a certain medium". This argument is not justified. The Article 3 of the Copyright Law and the Article 4 of the Regulations for the Implementation of the Copyright Law of the PRC are not defining clauses. Copyrightability is a value proposition, only related to its originality, while "having fixed" only involves the combination of the works and the material carrier, which makes it perceived, disseminated and stored. Therefore, it has nothing to do with creation, nor with the legislative purpose of the Copyright Law, that is, to encourage creation. In this way, the live sports event video, though it is not fixed, should belong to a copyrightable work.