The Regulation Of The Anti Unfair Competition Law On The Borrowing Of Charater’s Names In Fan Fiction

Fan fiction is an important form of literary creation.Character names have empathy and high commercial value.Fan fiction often borrow the names of characters from other works.Under the regulation of the anti unfair competition law,the court held in most of the judgments that the commercial use of the fan fiction borrowing the character’s name constituted unfair competition,which provided protection for the commercial interests contained in the character’s name,so the fan fiction was greatly restricted.The court mainly applies the general provisions and confusion provisions of the anti unfair competition law to determine that it constitutes unfair competition.Through case analysis and literature analysis,this paper makes an in-depth analysis of the legal application of the anti unfair competition law to regulate the borrowing of characters’ names in the same person novels,so as to provide more creative space for the same person authors.There are two main problems in the regulation of the commercial use of the name of a person by the general provisions and the confusion provisions of the anti unfair competition law.On the one hand,the anti unfair competition law regulates the confusion of the applicable provisions of the fan fiction by borrowing characters’ names.On the other hand,the standard of application of the general provisions and confusion provisions of the anti unfair competition law is not perfect.This paper analyzes the application of the general clause and the confused act clause in the anti unfair competition law from the aspects of subject,object,act,damage consequence and causality.In the aspect of subject,the identification of the competitive relationship between the borrowed characters’ names and the original novel is relatively broad,and the identification of the competitive relationship should be limited.As for the object,most of the general provisions of the anti unfair competition law start from the protection of the interests of operators,ignoring the interests of other objects,and should pay attention to the protection of consumers’ rights and public interests.The object commodity name protected by the confusing act clause should have significant characteristics.The name of a person is not significant and does not constitute a commodity name.In terms of behavior,the general provisions of the anti unfair competition law have a broad connotation of business ethics,which limits the creation of the same person.We should clarify the connotation of business ethics and give more space for the creation of the same person.There is no clear applicable standard for the confusion of related relationship,and there is a risk of abuse.In the aspect of damage consequence,the standard of damage consequence identification in the general provisions of anti unfair competition law is low,and it should be significant in identifying the damage consequence of borrowing the name of characters in fan fiction.In terms of causality,the causality between the damage consequence and the borrowing of characters’ names and the novels is not strong,so we should consider the causality between the damage consequence and the borrowing of characters’ names and the novels in many aspects.In terms of the application relationship between the general provisions of the anti unfair competition law and the confusing Act provisions,the general provisions of the anti unfair competition law can assist the application of the confusing Act provisions,or can be applied separately.When applied separately,we should adhere to the principle that the more specific the clause is,the more preferential it is.When it can be applied,the confusing act clause should take precedence over the general provisions of the anti unfair competition law.