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In the final analysis, magic is just a "deception". There is no intellectual content or intellectual property rights.
The works referred to in the Chinese Copyright Law refer to intellectual creations that are original in the fields of literature, art and science and can be reproduced in some tangible form. Originality and reproducibility are its fundamental characteristics. . Also, a very important point is that according to the provisions of Article 9, Paragraph 2 of the Trips Agreement, copyright only protects the expression of intellectual creations, and not the ideas, procedures, operating methods or mathematical concepts themselves. Therefore, although David's magic "invention" is original (he independently created it), it is difficult to meet the second requirement of the work, that is, replicability. Copying, according to the provisions of my country's Copyright Law, refers to the act of making one or more copies of a work by printing, copying, copying, rubbing, recording, videotaping, ripping, or photographing. The premise of copying is that, in addition to oral works, certain intellectual creations must have a specific form of expression. The reason why works must be replicable is mainly to consider the needs of knowledge diffusion and dissemination. As far as magic is concerned, its vitality lies in a certain mystery that is not known to the public. When a magician creates a magic "work", he may also form some form of expression, such as writing words about movements, expressions, music, and performance processes. Design, but it is impossible for the magician to "publish" it or otherwise communicate it to others. Otherwise, its performance will be worthless. This feature determines that magic "works" are basically not "replicable", and it is impossible for the public to make any copies of its "works". From this it can be concluded that magic can hardly constitute a work within the meaning of copyright law. Although magic does not constitute a work in the sense of copyright law, it can completely constitute a trade secret and thus enjoy the protection of the Trade Secrets Law or the Anti-Unfair Competition Law. According to Article 10 of my country’s Anti-Unfair Competition Law, trade secrets refer to technical information and business information that are not known to the public, can bring economic benefits to the right holder, are practical, and have been kept confidential by the right holder. Paragraph 2 of Article 39 of the Trips Agreement also provides similar provisions. Accordingly, whether certain information constitutes a trade secret must meet three basic requirements: first, commercial novelty, second, value, and third, confidentiality. Magicians create magic that fully meets these three components. First of all, the magician's magic should be novel and unique, and be as different from existing magic as possible. It can satisfy the audience's curiosity and be commercially novel, allowing the magician to maintain an advantageous position in the same industry. Secondly, magic can be reproduced through the magician's performance, and thus brings huge economic benefits to the magician, which is of value. Thirdly, the vitality of magic lies in its mysterious color that is unknown to the audience. The magician is always tight-lipped to the outside world. Although the audience racks their brains to decipher the magician's magic, the result is basically in vain. This shows that the magician has a strong sense of confidentiality and has taken sufficient confidentiality measures to protect his secrets. Why is David's magic so attractive? An important reason is that David did a good job of keeping it secret, and no one has been able to crack the secret of his magic so far. In short, magic, as a kind of comprehensive information, has commercial novelty, value and confidentiality, and fully conforms to the characteristics of a trade secret. It should be treated as a trade secret and protected through a separate trade secret law or anti-unfair competition law. In our country, the current basic law for protecting trade secrets is the Anti-Unfair Competition Law. Compared with patent rights, trade secret rights are rights with very weak validity. The law allows different people to own exactly the same trade secrets, and also allows reverse engineering to decipher the right holder's trade secrets. What the law prohibits is only the act of obtaining, using, and disclosing the right holder's business secrets through improper means. Therefore, the act of cracking magic can be regarded as a legal reverse engineering act, and the act of freely disposing of legally obtained trade secrets does not infringe on the rights of the magician. Treating magic as a trade secret also raises a crucial question, that is, how to treat the magician's performance. Does someone's behavior such as live broadcast or audio recording of his performance without permission infringe on the magician's rights? What rights were violated? These three questions can be boiled down to one question, that is, is the magician the subject of neighboring rights - the performer? According to the provisions of my country's existing copyright law, performers refer to actors or other people who perform literary or artistic works.
The Trips Agreement fails to clarify the meaning of performers. Article 2 of the WIPO Draft Treaty on Performances and Phonograms stipulates: “Performers refer to actors, singers, musicians, dancers and those who perform, sing, speak, recite, perform, "Other persons who express or otherwise perform literary or artistic works or folklore works." It can be seen that the performer must be a person who performs literary or artistic works. Although a "performance" is performed in public, if the performance is not a "literary or artistic work", it cannot be called a performer. Obviously, my country’s copyright law and the World Intellectual Property Organization’s draft performance and recording treaty exclude magicians, athletes, etc. from the scope of “performers”, so magicians are not performers in the sense of copyright and neighboring rights. So, is it an infringement to broadcast live or record or videotape a magician’s performance without the permission of the magician? Of course it is, but what this kind of behavior infringes is not the magician's rights as a "performer", but his right to portrait or privacy. Magicians can protect their rights by relying on the relevant provisions of the General Principles of Civil Law on portrait rights and privacy rights.