Study On Similar Literary Works Infringement Determination

With the rise of the Internet and the development of network literature,similar infringement cases of literary works are common.This is because the ways of using literary works to obtain economic benefits are gradually increasing.When the infringing works occupy the original copyright owner’s market and damage the original copyright owner’s interests,disputes will inevitably arise.However,China’s copyright law does not establish the rules to determine the similar infringement of two works,so it is not unified in judicial practice,and the judge has more discretion.The general rule is "substantial similarity + contact",but how to judge substantial similarity is also a difficult problem.Because "substantiality" itself is ambiguous,and the rule comes from the United States,so the local research should go back to the root,and evolve it into a method suitable for the domestic situation.The similarity of literary works refers to substantial similarity,but due to the particularity of literary works,substance has different connotations.Firstly,it explains the elements of literary works,which are divided into theme,theme,plot,character and dialogue.Among these elements,some belong to the field of thought and public domain,which can not be protected by copyright.Copyright law only protects original expression,which part belongs to thought and which part belongs to expression,which involves one of the constituent elements of Copyright: the dichotomy of thought and expression.After the separation of ideas and facts belonging to the public domain,the remaining part needs to judge its originality,which is the second component of Copyright Law: originality.Only when the constitutive requirements are met can the substantial parts of literary works be compared.This kind of comparison is not only superficial expression,but also its "soul".Although the "three-step test" and the "general method" may be used to determine the efficiency of copyright,it may be more unsatisfactory.Therefore,in the face of different cases,choosing the appropriate method and subject has a key role.After a thorough analysis of all the elements related to the similar infringement of literary works,how to determine whether the recently hot topic of "ronggeng" infringes is a matter of course.Copyright infringement is a kind of infringement.Therefore,in order to determine the infringement of the accused literary works,it is necessary to confirm that the accused has no proper defense.The defense provided by law includes reasonable use,statutory license,compulsory license and beyond the limitation of action.As long as one of them is satisfied,there is no need to discuss copyright infringement.