The Determining Standard Of Substantial Similarity Between Works

Copyright law of the people's republic of china and relevant laws don't directly stipulate the substantial similarity,but when courts try copyright infringement cases,they use this conception again and again.For example,in the case of Qiongyao v.Yuzheng,which had huge impact at home and abroad recently,the people's court of first instance determined the copyright infringement based on the criterion of substantial similarity,and the appellate court did this too.As one of the necessary factors of determining copyright infringement,the standard of substantial similarity plays an important role in judicial practice.It makes a balance between individual interest and social interest.However,how to determine it accurately is a challenge courts face now.In the judicial practice in china,the criterions of substantial similarity which different courts adopt are different.Although our country has not set fourth in the law,but when the courts judge whether the plaintiff's work and defendant's are substantially similar,they also need to adopt a unified criterion,so as to give expression to the fairness of the judgment and the parties can expect the outcome to some extents.Firstly,this paper introduces some basic issues on the determination of substantial similarity.Combining theory and practice,this paper defines the concept of substantial similarity based on China's and America's situations.Substantial similarity refers to the similar or same original expressions in works between the plaintiff and the defendant which lead to audiences' similar feelings.Then this paper demonstrates the important role the standard plays in determining copyright infringement.By introducing the current situation,the paper points out that it is necessary to keep studying the standard.Secondly,this paper mainly introduces the preconditions of application of the standard.The determining standard of substantial similarity is not always applied in copyright infringement cases.Only when the case meets the preconditions,it can be applied.That is to say,determining of copyright infringement consists of two steps and the application of the standard is the latter one.Only when the defendant copied the plaintiff's work,it makes sense to apply the standard to determine copyright infringement.Finally,after analyzing the theories and practice of substantial similarity determination,this paper puts forward that the standard includes two specific aspects,and discusses the two criterions in detail.One is based on the content,and the other is based on the level of similarity.Due to protecting ideas will reduce public interests and bring excessive rent-seeking actions and the intensification of operating costs,when courts determine copyright infringement based on the standard,ideas shouldn't be included in the scope of copyright laws' protection.Works created by authors independently and with discriminative originality are the parts copyright laws protect.Therefore,the standard of content requires the original expressions' existence in plaintf's work.With regard to the standard based on the level of similarity ' it should be applied on the condition that the defendant leads to the plaintiff's damages.No damage,no infringement.And the plaintiff's damages are caused by the audience's feelings,because if audiences think that the two works are similar,the two works will be alternative to them.And the plaintiff will lose his market shares.Therefore,the standard of level of similarity requires that audiences feel that the defendant's work is similar to the plaintiff's work.