A Critique Of Literary Ideas In The Practice Of Copyright

This thesis attempts to study critically the literary ideas in the practice of copyright. It centres round the limitation of identifying the plagiarism in literature, which in my view mainly lies in that the judicial method is highlighted while the specialty and complexity of literature is neglected.Besides introduction and conclusion, the whole dissertation consists of seven chapters.Chapter One and Chapter Two are a critical study on the substance concept of literature. We think that obviousness and complexity are two features of the plagiarism in literature when compared with the one in ordinary works (such as academic works), but in China Two Steps Testing Method deriving from the USA is put into practice without paying attention to the two features when we identify plagiarism in literature, especially the organic texts are cut into parts by Levels of Abstraction Test and Two Steps Test when we judge the similarity in substantiality of the two works. In our view, there are two limitations in the part comparison method. The first is that it stresses part of the work but not its entirety. The second is that it emphasizes the expression of the work while the significance and the function are overlooked. The fundamental reason for the two limitations is that idea/expression dichotomy is looked upon as content/form dichotomy in the practice of copyright in China. Once we divide literary works into content and form, literatures have been considered as objects and substances. Therefore, in a sense, the problem in identifying plagiarism in literature is related with the substance concept of literature. The substance concept of literature is the literary idea in which a literary work is regarded as an isolated, static, ready-made, invariable substance. Its origin is the substance theory in philosophy and its connotation includes three aspects: literary nature is regarded as substance; literary text is isolated; and literary significance is ready-made. Influenced by the literary idea, the judicial practice of identifying plagiarism in literature easily meets with three confusions: the organic literature is misunderstood as the inorganic factor combination; literary world and the medium of literature is confused; and the difference between subsistent meaning and generative meaning is ignored.Chapter 3 to Chapter 5 attempts to analyze the limitation of the literary idea of originality. The dispute of plagiarism will be triggered when the plaintiff accuses the defendant of plagiarism. The essence of the dispute of plagiarism in literature is a conflict between the literary idea of originality and the one of gradual creativity. The plaintiff stresses his work's originality and thinks that copying must be prohibited, but the defendant advocates gradual creativity and thinks that the problem is not whether to copy but how to copy. Copyright Law regards originality as the basic condition under which works acquire protection, which is related to the Romantic Movement respecting originality. When the literary idea of originality infiltrates into Copyright Law, two limitations in copyright theory appear. One is ambiguous originality, the other is abstract substantial similarity. There are triple embarrassments when plagiarism in literature is identified according to the literary idea of originality. They are, respectively, not knowing how to face "creative adding", not knowing how to face "creative copying", and not knowing how to face the similarity of core. Abiding by the law leads to going against the literature law while considering the specialty of literature leads to conflicts with some regulations.Chapter 6 and Chapter 7 discusses what will appear and which limitation in the practice of copyright can be made up if we adjust the literary idea. We think that in macroscopic view, the literary idea of the practice of copyright can be adjusted from the substance concept of literature to the one of active literature. We can judge substantial similarity of two works in the entirety, in the context and in the interpretation. In microscopic view, the literary idea of the practice of copyright can be adjusted from the one of originality to the one of gradual creativity. We think copying should not be prohibited blindly any longer and identifying plagiarism in literature should comply with the nature of copying. We can make corresponding adjustment in the practice of copyright: firstly, finding the factors of mutual quotation and reference; secondly, measuring whether the follow-up work is a new one; thirdly, seeing whether the quoting is reasonable.In conclusion, to solve the literary issues such as literary plagiarism which are regulated by the law, the researchers on literature and law should join hands. It is necessary to put literature jurisprudence on the agenda when the interaction between literature and law develop.