What is the difference between the originality of copyright works and the creative standard of patented technology?

The creativity of a work is very different from that of patent law. First of all, the creativity of the work is not based on novelty, and the ideological theme of the work is not required to be novel and unique. Although a work is the same as or similar to another previous work, as long as the work is independently created by the author, it will not destroy the creativity of the work. Creativity in patent law is obviously based on novelty. For example, Tunisia's Copyright Model Law emphasizes this point in the annotation of Article 1, and the originality and novelty of a work cannot be confused.

Secondly, the creativity of the work is not exclusive. Different people who create the same or similar works at the same time can still obtain independent copyright. The patent law does not allow repeated authorization for the same invention and creation.

Thirdly, the certainty of the two is also different. The creativity of a work requires that the intellectual achievements are different from the existing works in the form of expression, whether it is the reproduction of existing knowledge or not. This feature is actually reflected through the personality of the work, and the personality requirement of copyright protection for intellectual creation results reflects the pursuit of diversity of social and cultural life. About the embodiment of the originality of the work in the personality of the work, the discussion will continue below. Creativity in patent law requires invention to have substantial characteristics and progress, which is obviously higher than creativity in copyright law.

The creative requirement of works is the second level of the concept of originality of works. The proposal of this standard is of great significance for excluding non-original intellectual labor achievements in the practice of copyright law.

Creation is a new combination. Intelligence is the ability of people to understand and solve problems by using previous knowledge. Intellectual labor is not all creative labor, nor will it produce a "new combination". Moreover, human intellectual activities objectively have levels and categories, and so do human products.

According to whether the works contain creative elements, in the practice of copyright law, we can completely exclude the achievements of intellectual mechanical labor and intellectual skills's labor from the works protected by copyright, on the grounds that these intellectual achievements do not contain originality in the sense of works.

As some European scholars have said: "A work is a work referred to in the Copyright Law only if it is produced in a creative way and reflects the creativity and originality required by law." "The distinction between works and non-works is based on the philosophical distinction between intellectual creative labor and intellectual mechanical labor. Only the results produced by intellectual mechanical labor are not protected by copyright. " .