Research On The Determination Of “Substantial Similarity” In Copyright Infringement

The “substantial similarity” rule to determine copyright infringement comes from the judicial practice of the United States,which is the embodiment of the principle of “thought/expression dichotomy” and the theory of originality in judicial practice.In our country,“substantial similarity”is not a legal standard,but it is widely used in the court to hear the copyright infringement dispute.That is,the defendant could be found to have infringed the plaintiff’s copyright only if the alleged work constituted a “substantial similarity” with the plaintiff’s work.Therefore,how to understand and judge “substantial similarity” is the core issue in copyright infringement.By reading relevant literature and searching for relevant cases,the author finds that the theory circle usually only regards “substantial similarity” as a small part of copyright infringement,and the research results are just a little and it lacks for systematization.In addition,there are many problems in the application of the rule of “substantial similarity” in judicial practice.Because the concept of “substantial similarity” is not clearly defined in Chinese copyright law,it is only an open and unwritten principle of law,and the court has more discretion in its judgment.In addition,there are various types of works,and it is difficult to adopt a uniform judgment standard,which leads to the problem that the judgment of “substantial similarity” in copyright infringement in China is not applicable and controversial.It can be seen that the judgment of “substantial similarity” is not only the core of copyright infringement,but also the difficulty in copyright infringement.Since there has been no unified interpretation of the “substantial similarity” rules in copyright infringement among the theorists,the author discusses the basic meaning of “substantial similarity”in terms of theoretical basis and the nature of the law in the first place,and discriminates“substantial similarity” from other relative concepts of copyright infringement,so as to further define its concept.Secondly,the author cards the main methods for determining “substantial similarities” in copyright infringement from the perspective of judicial practices in China and abroad,where approaches are involved including the “integral perception approach” and the“abstract separation approach”.Then the advantages and disadvantages of the two approaches are analyzed,thus proposing the existing problems in the process of “substantial similarity”.Finally,the paper puts forward suggestions for determining of “substantial similarity” in copyright infringement,including the combination of “integral perception approach” and the “abstract separation approach”,the introduction of abstract subjects of value,the type of works,the space for the creation of works,and comprehensive considerations for “quantity” and “quality” amongsimilar parts.Through the discussion of the above-mentioned aspects,the article expects to conduct a more systematic research on determining “substantial similarity” in copyright infringement,thus further regulating the application of “substantial similarity” in judicial practice.