Study On The Protection Of Unfair Competition Law For Fictional Characters Of Written Works

The protection of fictional characters of written works may appear to be a microscopic area of jurisprudence,but it is more complex because of the underlying issues of intellectual property law and anti-unfair competition law.It is common that someone uses others’ fictional characters of well-known written works without authorization.It will not only harm the legitimate interests of the authors of the prior works,but also the interests of consumers,and may even damage the order of market competition.In view of the fact that the legislation does not explicitly provide for the protection of fictional characters of written works,and no judicial interpretation related to fictional characters of written works has ever been issued.Therefore,how to protect the fictional characters of written works deserves in-depth study.Existing judicial practice shows that fictional characters of written works detached from written works can hardly constitute works protected by copyright law,but there is room for the application of anti-unfair competition law.Judicial practice in both China and the United States has shown that fictional characters,separate from the works,are often not protected by copyright law because they are difficult to form expressions of their own and often do not constitute works.Anti-unfair competition law has the function of supplementing the protection of intellectual property rights,and at the same time,the broad competition relationship can be adjusted by including the acts of using virtual characters of written works into the anti-unfair competition law.However,when applying the anti-law,many cases with similar basic facts have very different verdicts.Therefore,judicial practice has not yet reached a consensus on how to specifically apply the anti-unfair competition law to adjust the use of fictional characters of written works.In this regard,through the analysis of the protection systems of foreign countries and organizations on the anti-unfair competition law of fictional characters of written works,this paper puts forward suggestions for improving the protection of fictional characters of written characters by applying the anti-unfair competition law in conjunction with the problems existing in our judicial practice.The main problems in our judicial practice are: the application of anti-law provisions has not been unified and the amount of damages is beyond a reasonable range.In this paper,we believe that the confusion behavior’s miscellaneous provisions of Anti-Unfair Competition Law should be applied to adjust the exploitation of fictional characters of written works.At the same time,the standard of damages should be further refined for exploits that constitute unfair competition in order to return to the filling function of damage compensation.