Identification Of Substantive Similarity In Literary Works

With the vigorous development of China’s economy,the cultural industry has also ushered in a period of rapid development.At the same time,it has brought many copyright infringement cases,including cases involving plagiarism and copyright infringement,which are increasing day by day,Bringing Trial pressure to local courts.Just like the two-sided effect of coin,on the one hand,it protects the private rights of copyright owners to encourage the innovation and development of culture;on the other hand,it measures the public interests and prevents copyright from becoming the umbrella of private interests;on the other hand,judges must learn to use substantive similar rules to deal with such problems when they are on the fair line.Although substantive similarity rules are not yet legalized,they are widely used in practice.By comparing the plaintiff’s literary works with the defendant’s,we can protect the copyright owner’s positive creativity,and at the same time,crack down on the illegal production of other people’s labor results.In the third revised draft of the Copyright Law,although it involves the dichotomy principle of the extension of copyright protection and the expression of ideas without extension,substantive similar rules are not included in it.Due to the lag of legislation,there are some difficulties in the application of substantive similarity rules in judicial practice,such as the difficulty in determining the elements protected by copyright,the existence of market substitution among works,and the limitations of substantive similarity determination methods.In view of the above problems,this paper takes empirical analysis and comparative research as the keynote to study.The full text is divided into five main parts:The first part mainly introduces the case of Qiongyao suing for the infringement of the right of adaptation and the focus of the dispute,and puts forward that the court of second instance in this case mainly judges the existence of the infringement based on substantive similarity rules.The second part is mainly about the detailed analysis of the connotation and application premise of substantive similarity rule.By introducing the connotation of substantive similarity rule,it paves the way for the judgment method below.It also points out that the premise of applying the rule is that the original work has originality,the defendant has the possibility of contacting the original work,and it is more necessary to distinguish between ideas andexpressions in the plaintiff’s works.The third part mainly analyses the judgment methods of substantive similarity in Chinese and foreign judicial practice,which are divided into the overall perception method,the abstract detection method and the internal and external testing method.It also intersperses the judgment points of Qiongyao’s case of infringement of the right of adaptation.Through the analysis of the judgment points in practice,it points out the shortcomings and leads to the reflection of practice in the following part.The fourth part is to put forward the judicial difficulties encountered in the judicial process.By comparing and analyzing the judgment ideas of relevant cases,the author puts forward some countermeasures to the problems encountered in the trial,such as the difficulty to determine the elements protected by copyright,the existence of market substitution between works,the limitations of substantive similarity judgment methods,and so on.The author also puts forward some helpful suggestions through the summary of judicial precedents in the following sections.The content of the idea of judging a case.The last part of the article puts forward some suggestions to improve the identification of infringement of literary works by combining the current national conditions and the application of substantive similarity rules in practice.It is necessary to insist on the specific analysis of individual cases,encounter different types of infringement of literary works in practice,and control the question of distinguishing public materials from original works,which are biased towards historical and practical works.Title: We should adhere to the method of overall comparison and abstract examination,because writing literary works can not be separated from the reference of the preceding article,so we should reasonably use the identification method,and give full play to the advantages of the two methods according to the specific situation,so that they will not excessively expand private rights nor excessively reduce public interests;we should pay attention to the ornamental experience of the relevant public,Qiongyao Fang as a proof in the case of Qiongyao v.The defendant’s TV plays are similar to his works,and the results are investigated on the Internet and submitted as evidence.The court of first instance also considered the report during the trial.It is presumed that the audience has produced a higher and consensus similar experience in viewing feelings.It is believed that the public’s viewing experience will gradually become one of the factors influencing the judgment in similar cases in the future.