Research On The Legal Regulation Path Of Non-deductive Fan Fiction Creatio

There is a distinction between formulaic and innovative fan fiction,and the creation of formulaic fan fiction is clearly regulated by relevant law.Because of failure to meet the criteria for originality,it is difficult to identify infringement by copyright law in judicial practice for innovative fan fiction,which is regulated according to the general provisions of the anti-unfair competition law.It is plausible to use this way,which is undoubtedly a mechanized interpretation of the copyright law and a general understanding of the anti-unfair competition law.In view of this problem,based on the understanding and application of copyright law and anti-unfair competition law,this paper analyzes the limitations of the application of anti-unfair competition law in the creation of innovative fan fiction and the main justifications for the application of copyright law combined with the existing cases of innovative fan fiction.In order to provide relevant support for the judicial cognizance of innovative fan fiction in our country,and promote the continuous progress and development of our culture market,this paper puts forward the specific logic of to jointly regulate the creation of innovative fan fiction by anti-unfair competition law and copyright law.The legitimacy and rationality of the reference to novel,which is the prototype the innovative fan fiction is based on,are in dispute.Once the purpose of creation tends to for profit,the contradiction between the innovative fan fiction and the original work will intensify day by day,which makes the situation of innovative fan fiction in desperate.Innovative fan fiction is a type of fan fiction,means that in the process of creation,the author only refers to the relevant elements of the original work,such as the name of the role,the relationship between characters and other related elements,but the storyline is totally original.The existing judicial judgments follows three referee logics,first is admit the creation of innovative fan fiction is original,second is the elements referred to do not protected by the copyright law,and whether the referring is legitimate or not,the judgment shall be made according to the general provisions of the anti-unfair competition law.The judicial decisions which conflicted with scholars and readers,were questioned.That is to say,under the framework of the current law in China,there is still irrationality in the regulation of the creation of innovative fan fiction.The creation of innovative fan fiction is within the scope of the intersection of anti-unfair competition law and copyright law.According to the judicial interpretation of the Supreme People’s Court stipulating that the anti-unfair competition law only provides limited supplementary protection to the intellectual property rights,and it is easy to fall into the misunderstanding of generalized intervention and improper expansion of the scope of protection.First of all,market competition is dynamic,it is easy to ignore dynamic competition and fall into the judgment mode of entitlement when the anti-unfair competition law is applied.What’s more,market competition is often accompanied by damage to legal interests,due to the application of anti-unfair competition law ignoring the real business ethics on the basis of secular morality.Finally,the application of anti-unfair competition law only considers the interests of operators,lack of reasoning while market competition involves multi-interests.From the perspective of copyright law,copyright law follows the principle of dichotomy of thought and expression.When it is difficult to define the boundary between thought and expression,the creation of innovative fan fiction hardly fall into the adjustment scope of copyright law.Therefore,the theoretical and practical commutities seldom start from the perspective of copyright law and advocate that the creation of innovative fan fiction shall be regulated by copyright law.However,from the characteristics of copyright law,it can be found that it is reasonable to use copyright law to adjust the creation of innovative fan fiction.For authors,the purpose of publishing a novel publicly is not limited to self-satisfaction,but also to gain readers’ recognition and empathy for the novel.Innovative fan fiction mainly rely on the deeply rooted elements of the original works to attract a large number of readers,and most of the referred roles and other elements have become the symbols of the original works and are deeply buried in the hearts of the readers.Though the dichotomy of thought and expression can resolve most copyright disputes,it is limited to the specific expressions in the literal sense,due to ignoring the specific expressions conveyed to readers behind the characters.In cases where the application of existing laws is unclear,judicial judgment shall use the right of discretion to reasonably apply copyright law in light of the characteristics of the work.In view of this,the copyright law should timely recognize the originality of this element,under the premise that the traditional dichotomy of thought and expression cannot resolve disputes,and adopt the copyright law to protect the readers’ reading experience.At the same time,the three controversial issues of the right of adaptation,the right of authorship,and the right to protect the integrity of the work in the application of the copyright law should be clarified,and the standards for the application of the law should be clarified.The creation of innovative fan fiction stimulates the enthusiasm of literary market creation,and it has a unique existence value.If a rigid approach is adopted,it will not only damage the creative enthusiasm of the creators of innovative fan fiction,but also hold back the vigorous development of the literary market.Anti-unfair competition law and copyright law have independent claim rights,and there is a basis for parallel application between the two laws.Therefore,the thought of application of the existing anti-unfair competition law and copyright law should be properly extended: one is to adopt a prudent attitude and reasonably determine the intervention limit of the antiunfair competition law,and the other is to judge whether it constitutes copyright law infringement based on the characteristics of innovative fan fiction.While safeguarding the rights and interests of the original works,the fair use system should be adopted to coordinate the common development of innovative fan fiction and original works.