Research On The Judicial Determination Of Copyright "Substantially Similar" Infringement Standards

With the vigorous development of China’s economy,the cultural industry has also ushered in a period of rapid development,and it has also brought many copyright infringement cases,bringing trial pressure to courts around the world.In practice,the rule of "contact + substantial similarity" is mainly used as the touchstone of the judge’s trial,of which the "contact" element is mainly determined by presumption,and the defendant proves that there is indeed no contact with the original work.For the "substantial similarity" element,because China’s Copyright Law and related laws and regulations do not have relevant provisions to determine,coupled with the judge’s subjective arbitrariness in the trial process,the phenomenon of "different judgments in the same case" occurs frequently.This also reflects from the side that with the frequent use of the "substantial similarity" infringement determination standard in China’s trial practice,it is necessary for us to understand the "substantial similarity" through theoretical research and strive to use it accurately in judicial practice.To this end,this article will make a comprehensive argument on the "substantial similarity" infringement standards in the Copyright Law,and take the novel,a representative literary work,as an example,with the intention of alleviating the problem that the outcome of the trial of the case is greatly affected by the subjective arbitrariness of the judge,in order to make a small contribution to China’s judicial practice.The full text is divided into four chapters,in addition to the introduction and conclusion:Chapter 1 deals primarily with the fact that in the United States,Judge Frank divides what is determined to constitute infringement under copyright law into two parts: reproduction and misappropriation.It mentions two concepts that are very similar to "substantial similarity" : "preliminary similarity" and "significant similarity",and in order to clarify the concept of the three,this article distinguishes between the stage of application and the difference in the applicable part.Chapter 2 mainly deals with the requirements of the infringement standard of "substantial similarity" of works,mainly by measuring the "quantity" and "quality" of similar parts between works to determine whether it constitutes "substantial similarity",and leads to the determination of whether it constitutes "substantial similarity" mainly by comparing the plot between the two works in fiction works.Chapter 3 mainly describes that in judicial practice,for the problems that arise in the judgment of "substantial similarity",starting from the current judgment method and combining the results of case judgments,it is found that in practice,some judges use the overall perception method to try cases,some judges use the three-step test method to try cases,and some judges use internal and external test methods to try cases,which leads to problems in China’s judicial practice: Judges are subjective and arbitrary in trying cases,and analyze the causes of problems.It mainly includes that copyright is difficult to determine the elements to be protected in novel works,the lack of clear provisions in the Copyright Law,and the subjective differences in the methods of selecting judges in judicial practice.Chapter 4 makes some suggestions for improvement based on the causes of the problems raised in Chapter 3,with a view to making a modest effort to make a modest effort to judicial determinations of "substantial similarity" in the Copyright Law.