试论著作权保护中的“思想与表达二分法”原则
On the Principle of “Dichotomy between Thought and Expression” in Copyright Protection

思想与表达二分法原则是著作权法中的一项基本原则，该原则自美国明确规定，经各国实践运用后，得到各国司法的普遍认可。我国虽未有明确的法律规定，但在司法实践中对该原则予以适用，在适用过程中发现思想与表达的界限难以区分、立法缺位、独创性标准难以把握以及技术发展带来的新挑战等诸多问题。通过剖析适用中存在的问题，以综合认定区分思想与表达、通过立法完善二分法原则、明确独创性认定标准以及以开放性条款顺应时代发展，由此推进我国立法进程，以期改善我国司法实践。
The dichotomy between thought and expression is a basic principle in copyright law, which has been clearly stipulated in the United States and has been widely recognized by the judiciary of various countries after being applied in practice. Although there is no clear legal provision in China, this principle is applied in judicial practice. However, there are many problems in the application of this principle, such as the difficulty of distinguishing the boundary between thought and expression, the lack of legislation, the difficulty of grasping the standard of originality, and the new challenges brought about by technological development. By analyzing the problems existing in the application, distinguishing ideas and expressions through comprehensive identification, improving the principle of dichotomy through legislation, clarifying the criteria for determining originality, and adapting to the development of the times with open clauses, we will promote the legislative process in China and improve China’s judicial practice.