Judging Of The Infringement Of The Right Of Integrity:Regulations,Practices And Problems

As an important part of the moral rights of authors,the right of integrity plays an important role in protecting authors’ works from being abridged,distorted and degraded by others.Since the provisions of China’s legislation on the right are relatively brief and vague,the courts are unable to unify the criteria for determining infringement,resulting in confusing results in practice.In China’s judicial practice,the three main criteria for judging infringement are the subjective criterion of "damage to the idea of the work",the objective criterion of "damage to the reputation of the author" and the hybrid criterion of fusing the two.The analysis of these three standards reveals that all three standards have been applied in judicial practice with varying degrees of deficiencies.The subjective standard give authors an excessively high level of legal protection,have great uncertainty,and easily cause confusion with the right to modify,etc.The objective standard does not conform to the legislative spirit of the right of integrity,blurs the boundary between the right of integrity and the right of reputation,and improperly increases the burden of proof of the plaintiff.The hybrid standard is only a simple collection of the above two,and cannot substantially change the existing problems.In view of the confusion of the applicable standards in judicial practice,this paper analyzes the theoretical basis for establishing the judgment standard of infringement,which should conform to the value orientation of the right of integrity,the principle of balancing the interests of copyright law,and at the same time,should not violate the principle of "non protection ideology of copyright law",so as to choose the "homogeneity of work" standard as the judgment standard of infringement.In order to solve the problem that in practice courts make judgments on whether infringement is committed only through a general determination,this article refines the conditions for the application of the criteria for judging infringement.From the perspective of the value base of the fictional subject,the type of group to which it belongs and its level of awareness,and the cost of realization,the fictional subject to be judged should be "the target rational public in the relevant field";put forward that the traceability of the altered work should be a prerequisite;emphasizes that the method of determining the idea of a work should be based on an overall comparative criterion,taking into account the quantity and degree of importance of the content being changed,in relation to the specific type of work;classified and interpreted the acts of "distortion and tampering",explain that the infringement should cover both the alteration of the content of the work itself and the improper use of the work,and clarified that there is no necessary link between whether it constitutes distortion and tampering and whether the perpetrator has the author’s authorization.Through the discussion of various aspects with a view to provide concrete and operable judgment criteria for judicial practice.