Research On The "Substantial Similarity And Access" Rule

The "substantial similarity + access" rule of the work is an important rule in the process of copyright infringement judicial judicial judgment.It is derived from the practice of American case law and widely used in China's judicial judgment of copyright infringement.This rule involves a comprehensive judicial judgment of the indirect evidence link,and also requires the judge's highly probable value in judicial judgment,so it is difficult to rise to a written legal norm.Therefore,the judicial application of the "substantial similarity + access" rule of the work needs to rely heavily on the experience and value principle of copyright infringement.However,in the context of different copyright infringements,the application of the “substantial similarity + access” rule in Chinese courts also shows the contradiction between legal transplantation and localization.It should be noted that there is no legal interpretation channel between the “substantial similarity” judging criterion and “proper quantitatively and substantially use” in the legislative judging elements of US fair use;the substantial similarity of works in practice is used to achieve unfair competition showing a "highly or striking similarity".Under the reality of legislation and infringement in China,the applicable model of empiricism tends to simplify the “substantial similarity + access” rule of the work,lacks understanding of the logic of the rule,and lacks methods and standards to judge the substantial similarity of the works.Making it difficult to balance the responsibility between burden of proof and judicial judgment in the lawsuit proceedings.The "substantial similarity + access" rule of the work presents some problems in the judicial application in China,not only involving the different arrangement of the copyright infringement proceedings,but also the exercise of the legitimate rights for the litigant to provide evidence and the defendant to defense.In addition to the shortcomings of insufficient experience,the "substantial similarity + access" rule of China's applicable works lacks the corresponding theoretical improvement: lack of proper understanding of the copyright infringement between the narrow and broad sense,failure to capture the concept of the rule(rules for judging harmful deed in copyright infringement);relies too heavily on the idea/expression dichotomy,fails to distinguish between different abstract levels of different works,and neglects the relationship and difference between the intrinsic expression and external expression of the works in substantial similarity judgment.Moreover,there is a lack of a similarity analysis method to distinguish between burden of proof and judging responsibility for infringement,which separates the copying judgment out of the infringement judgment.The lack of theory leads to the lack of capturing the scope of copyright protection in the substantial similarity of the works in judicial judgments,failure to permeating the value concept of the theoretical tools such as originality and idea/expression dichotomy into the judicial judgment for copyright infringement.In order to overcome the above-mentioned problems,this paper attempts to make a critical analysis of the concept,theory and experience of the "substantial similarity + access" rule of the work: First,analyze the difference between the concept of the concept of "copyright infringement" between the broad and narrow sense,define the rule of "substantial similarity + access" is for judging "harmful copyright deed"(narrow copyright infringement sense),ensuring the court properly understand and make copyright infringement judgments,overcome the legal contextual troubles in the application of the "substantial similarity + access" rule of the work;secondly,conclude the applicable theory of the "substantial similarity + access" rule of the work,try to criticize the traditional understanding for copyright protection scope by using the semiotic theory tool and explains the basic method of “external observation after abstract observation”.Finally,differentiate between the factual evidence and legal value judgment stages,and reanalyze the definition of “substantial similarity + access” rule in above stages,indicate the preliminary burden proof by prove access and probative similarity,explain the method and standard in determination of substantial similarity.On the basis of considering the concept,theory and experience of the "substantial similarity + access" rule of the work,point out the legal context differences of the rules and summary applying circumstances in China;lack of logical path;imbalance between the burden of proof and judicial judgment responsibility;obscure of the criteria for determining standard.In the end,improve the "substantial similarity + access" rule basing on the reality of China's experience,build logical connection between the judicial judgment and copyright law,balance the responsibility between proof and judicial judgment,properly distinguish the infringement defense,ameliorate the specific steps and standard for judging substantial similarity of the work.