The Copyright Protection of Fictional Characters: Mainland China Compared with the United States and Germany

The Copyright Protection of Fictional Characters: Mainland China Compared with the United States and Germany addresses the two legal issues: (1) whether and how fictional characters are eligible for copyright protection, and (2) what uses of fictional characters are subject to copyright protection. These two issues are further evaluated for their economic and cultural effects in action based on rightholders’ deployment of copyright claims. It compares the copyright rules in Mainland China with their equivalents in the United States (US) and Germany, viewed within the EU framework. It finds that copyright protects fictional characters as the expressions of narrative works in principle, and as separate works when special rules apply. Mainland China is distinguished from the other two jurisdictions in that it conditions separate protection upon independent forms of presentation. In contrast, the US and Germany require highly concrete formulations based on the merit of creation. It also finds that the separate protection of fictional characters may increase the certainty and flexibility of rightholders’ claims. The former is the case in the US, and the latter is the case in Germany and Mainland China. The divergence in their legal regimes does not result in a substantial difference in the scope of rightholders’ copyright claims regarding the use of fictional characters, or the balance of interests according to the law in book. 

Nevertheless, according to the law in action shaped by rightholders’ deployment of copyright claims in Mainland China, economic and cultural interests are balanced in a dynamic state. Specifically, they reserve the claims on merchandising fictional characters’ images for their exploitation to increase their reward, they enforce claims to enjoin plagiarized and competing creations to foster the diversity of cultural goods, and they refrain from enjoining fan creation to further the dissemination of their works at the expense of cultural diversity. The balance of economic and cultural interests is achieved by coordinating multiple claims that serve these interests to varying extents, rather than adopting a claim where these interests trade off at a certain rate.