| With the emergence of new technology, and the development of the reproduction and transmission methods, the initial publishing right has been extended to a bundle of rights with reproduction right as core. The bundle of rights could be divided into three types, including reproduction rights, deduction rights and transmission rights. The deduction rights are closely related to the reproduction right, although they are different from each other. The copying, as the essential behavior of copyright infringement, includes full reproduction and approximate reproduction. The full reproduction means identical copying, while the approximate reproduction means copying with in apparent distinctions. In the process of copyright expansion, the balance between individual interest and public interest constantly constitutes the foothold of establishment of copyright system. The fair use of others’ work does not infringe others’ copyright, however, unreasonable misuse may cause the infringement. The approximate reproduction makes the works show the similar characteristics. Under this circumstance, to distinguish the behavior of copyright infringement is the key to determine the infringer’s liability.In order to make the author obtain certain incentive and the public have chances to accessand fair use the works concurrently, it is necessary to ascertain a boundary between fair use and infringement. Therefore, this paper demonstrates how to determine copyright infringement between similar works, and intends to build a reasonable approach to judgment. Apart from the introduction and the conclusion, this paper includes five chapters.Chapter One discusses the history of copyright infringement issues, which include the arising of similar work infringement issues and the evolution of approach to determine copyright infringement between similar works(hereinafter, referred to as “Similar Work Infringement.). In order to clarify the meaning of the Similar Work Infringement, this chapter discusses the beginning of such issue. After defining akey word “copy”, the relationship between copying and Similar Work Infringement is discussed. The extension of scope of reproduction made the protected subject shift from anti-piracy to anti-plagiarism. The plagiarism is a reproduction which adds plagiarist’s own original labor, leading to similar work infringement issue. However, copying would infringe copyrights only if the similarity is up to a certain extent. The second part of this chapter gives a detailed analysis on the development of thoughts as to judgment on Similar Work Infringement and the influencing factors involved, including internal and external factors. The internal factors are from Judge himself, and the external factors are in connection with the popular theories of socio-economics, culture and philosophy. After a long time of development, nowadays copyright system in common law system has formed a certain determining approach, which mainly has the following aspects: the infringed objects beenchanged from absolute expression to relative expression, the required standard to copyright infringement between same works been changed from the “striking similarity” to “substantially similarity”, and the judging body been changed from the judges to “ordinary observer”.Chapter Two discusses two factors that the work is protected by copyright law, i.e. expression and originality. To determine copyright infringement, the work must exist. If a work is not in the scope which would be protected by copyright law, it would not be infringed. Therefore, this chapter firstly studies the rationality, limitations, and the new encountered problems of idea/expression dichotomy. The distinction between idea and expression differentiates the protected work from the unprotected work, which provides the safety valve for others to use pre-existing knowledge freely. This also makes the idea/expression dichotomy have the natural rationality. With the development of new technologies, the types of protected works are growing and the boundary between idea and expression becomes blurred. New media forms such as TV program format put forward new challenge to the idea/expression dichotomy. The limitations of the idea/expression dichotomy lead to the situation that if the judges try to distinguish the idea from the expression, they only depend on their own personal interpretation in specific cases. To prevent judges’ excessive subjectivity, this paper suggests that we can learn from the courts in United States and follow two guidelines: 1) to balance the private interest and the public interests;2)when the works are similar, it’s better to identify the work as protected expression.As idea and expression are indeed difficult to distinguish, it’s better to apply originality or other rules to determine infringement. Secondly, the chapter deeply discusses “originality”. After analyzing the differences on concept of originality between Common Law and Civil Law, this chapter focuses on legal requirements of originality and judgment for originality. The Originality requires the work must be created independently and has creativity. Independence distinguishes from plagiarism.Creativity is the standard to distinguish creative labor and non-creative labor. This paper proposes two approaches to determine whether there is originality in a work: 1)depending on the nature of the labor to finish the work; 2)depending on the discriminative requirements of originality by the type of work.Chapter Three discusses the determining standard for copyright infringement on similar works as “substantial similarity”. This chapter is the key issue in the paper. There are two relevant concepts, which contribute to the determination of infringement: “probative similarity” and “striking similarity”. US courts divide the determining process into two steps: the first step is to prove the existence of copying; and the second step is to prove that the defendant improperly misappropriates the protected work. Probative similarity presumes the copying. Striking similarity proves that the defendant contacts the protected work. The paper discusses “substantial similarity” on four aspects including etymology, nature, judge body and determinative methods. As far as the etymological point, substantially similar is not directly specified in the Copyright Law as a standard for copyright infringement between similar works. It is a concept created by the U.S. judges in a long-term practical experience. This term has been introduced in China’s judicial practice. Substantial similarity is an elusive concept. The paper defines the legal connotation of substantive similarity, and raises that substantive similarity refers to the same or similar original expression in works between the defendant and the plaintiff. Besides, the paper points out that the key is to confirm “substantial portion” of the work, when determining substantial similarity. “Substantial portion” here refers to the original content in the plaintiff’s work. To support a finding of infringement on the basis of substantial similarity, the copying does indeed rise to the level of an infringement in quantity and quality. A perception that two works are merely “similar” is not sufficient. If the similar party is more valuable in the plaintiff’s work, the quantity is less affective. But the similar quantity is not de minimis. In order to make “substantial similarity” test in line with the fact, this chapter analyzes the test subject and test methods of substantial similarity. For the test subject, the paper starts from the concepts of “ordinary observer”, “intended audience” and “more discerning observer”, and differentiate the same. The range of the “ordinary observer” is broader than the “intended audience“, which is not aimed at a specific person. As a special group, “intended audience” is belong to “ordinary observer”, who has the relevant expertise, primarily to detect highly specialized computer software and other works. When the public domain works is separated from the work, more discerning observer is to be the test subject. Finally, in order to better examine the applicable effect of “substantial similarity” standard, this chapter does empirical research on applying “substantial similarity”. This empirical study set out to include all reported American federal appellate court opinions that made a ruling on the issue of substantial similarity. Collecting a total of 234 circuit court cases spanning from 1923 to 2011, the paper analyzes from distribution of substantial similarity opinions by Year, substantial similarity win rates by Year, substantial similarity opinions by circuit and test applied and substantial similarity opinions by subject matter and so on. Then, in accordance with the same standards, the paper for the same analyzes the appeals court cases in China that made a ruling on the issue of substantial similarity spanning from 2000 to 2011. On this basis, compared to the judgment results between China and the US courts, the paper finds out the differences between entities and the applicable procedures, and analyzes the causes which lead to the differences. Based on theoretical and empirical analysis of "substantial similarity", the paper proposes “substantial similarity” test on China’s judicial practice.Chapter Four discusses the substantial-similarity inquiry in different types of works. Although “substantial similarity” is a unified testing standard, in the specific identification, the methods and requirements are different due to the works with different types and attributes. Therefore, the works is divided into four types: text works, visual art, musical works and computer programs. Although films are audiovisual works, the factors which determine infringement still contain in the script, except for sound and picture and the films are placed in literary works. Based on the features of works, the chapter discusses the ways to test infringement between similar works and different types. Firstly, the way to determine infringement is realized in text works. The text works are divided into works of literature and non-fiction works. Literature is a fiction work, made up of seven elements including themes, characters, dialogue, plot, background, emotional tone and speed. Theme is the core of the story; the plot is the basic framework of the story and the description of characters, dialogues and background is attached to the frame. Therefore, the paper proposes test on substantial similarity should take the plot as the main content combined with other elements. Nonfiction is extremely limited on the alternatives of expression and only highly similar or identical of the text would be defined as substantial similarity. Secondly, the way to determine infringement is realized in the visual arts works. The basic elements of art works cannot be separated from the works. The paper suggests the judgment should take the works as a whole, excluding the public domain and measure to rest. As far as practical artwork, style and practical feature must be distinguished, and only consider the whole artistic form. Thirdly, the way to determine infringement is realized in musical works. According to the differences between musical works and visual works, the paper proposes to compare hearing by ordinary observer instead of scores. Fourthly, the way to determine infringement is realized in the computer program. The thesis deconstructs the constituent elements of a computer program, and then compares copyrightable factor in the computer program. Regarding substantial similarity, the paper believes that the key is to make sure the position occupied in the original program.Chapter Five discusses the defenses for copyright infringement, including fair use, copyright misuse etc.. Firstly, “Fair use” is a way to limit the copyright, which is based on the public policy. The paper analyzes the apply of“fair use” defense, As “fair use” provisions is too unfavorable for the accused infringer, it should be appropriately adjusted. Secondly, the paper studies “copyright misuse”, which is different from copyright abuse in Antitrust Law. Copyright misuse isn’t instructed in China. The paper analyzes the evolution of “copyright misuse” rule in the US judicial history, and explores deeply rationality and applicability to introduce the rule in Chinese judicial practice. In the end, the paper recommends to apply “copyright misuse” rule in Chinese judicial practice as a copyright infringement defense. Thirdly, the paper summarizes other copyright infringement defenses, including independence of the infringer, un-originality of the plaintiff’s work. |
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