Research On The Standard Of Identify Copyright Infringement

How to identify copyright infringement is one of the issues of great importance in the copyright law. However, the copyright law in China is not entirely clear on that, and in judicial practice different opinions are held and diverse approaches are applied. At present, "the syllogistic criterion" and "the access + substantiality similarity two-step approach" are principally employed in judging copyright infringement acts. The problem is that the divergence between the two approaches could lead to diverse verdicts. Taking "Lian Shuxiang Case" as a point of penetration, this paper makes a review and an analysis of the judging approaches and of the defenses of copyright infringement as well as analyzing the protected object of the copyright law.The first part displays explicitly the focus of this paper by introducing the overall facts about Lian Shuxiang Case and by discussing the court verdict.The second part lays the theoretical framework for the approaches of judging copyright infringement. In this section, the protected target of the copyright law is presented; the point that "the copyright law is designed to protect the expression of the work, with the extended ideas excluded" is stressed; and the problem "what can be accounted as the original expression of the work" is discussed.In the third section, through the review and comparison between "the syllogistic criterion" and "the access + substantiality similarity two-step approach", the author concludes that "the new three-step approach" which incorporates the strengths of the existing methodologies should be adopted in China. The three-step approach runs as follows: step one, to judge whether or not the work involved can be identified as the work in the sense of the copyright law and in effective protection period; step two, to specify the bounds between the ideas and the expression of the work involved by means of "dichotomy between ideas and expression"; step three, to make an analysis and decision on whether there are any defenses which can account for the similarity between the expressions of the defendant's work and the plaintiff's work. In addition, in this section, the author presents how the new approach makes up for the deficiencies of the existing methods through analytical comparison.The fourth section elaborates on the concept, the features and the significance of defenses in copyright infringement, and takes an example to reveal the relevant defenses and the rules of their application.The conclusion is drawn in the last section, that is, in the light of "the new three-step approach", the defendant in "Lian Shuxiang Case" should be judged not violating the copyright of the plaintiff's. The three-step approach offers a new train of thought in the copyright infringement case.Given that the presently existing methods surfer from drawbacks, the author holds that the advantages of the new three-step approach should be adopted and employed. Only through combination of the strong points of the new approach, originality analysis, dichotomy of ideas and expression and the judge of the substantial similarity can rational and convincing verdicts be drawn.