The Copyright Law Boundary Of Borrowing Character Elements From Original Works

In digital network times,copyright disputes have presented new characteristics.The present copyright law systems are confronted with unprecedented challenges,which cannot respond effectively to the new and complex cases.The limitation with exception mode of copyright law has inherent limitations,which lacks the prognosis of the copyright problems of inner elements in the works and the new style works and to some extent causes controversial judgement results with different standards in judicial practice.Among these cases,disputes related to the borrowing of character elements of works are most common.It is urgent to analyze the copyrightability of character elements and the legality of fan works in the theoretical level and correspond to the phenomenon of character element borrowing in view of the copyright law revision and the legal practice.It is of great significance to establish a rational perspective towards fan works and provide copyright protection for character elements.For fan works in a narrow sense,the mainstream of dividing fan works into derivative works and non-derivative works should be abandoned since these works have broken away from the basic expressions of the original works.Only on this premise will it be more meaningful to discuss the copyright nature of fan works and the character elements in the original works.If the main part of the fan work is increment expression and is creative both in form and in content,contains author's new value pursuit and fits into legislative spirits of encouraging creation and promoting cultural prosperity,it should enjoy the protection of copyright.If not,it should not enjoy the protection.Two aspects should be considered to decide whether borrowing character elements from original works constitutes infringement.The first aspect is the copyrightability of the character elements in the original works.The second one is the legitimacy of the borrowing act.On one hand,the main point of originality is the significant difference.When it has met the requirements of originality and externalization in expression,the character element of the works can be granted independent copyright,which means that when the character element is the core of the works,full in connotation,famous and able to trigger associations of readers or users dramatically,it should constitute the protected expression.Except this,most of the character elements are classified into the public domain because of the popularization.On the other hand,when considering whether borrowing character elements constitutes substantial similarity,if the character elements are obviously similar literally,the traditional technical rules,like the abstraction test and the ordinary observer test are not necessary.In view of this,we should turn to analyze the character element in value,which means considering whether it has achieved consistent mental functions and economic effects in two works.This new method has proven to be very effective in individual case analysis.Besides,the closed clause mode in Chinese current copyright law has proven to be problematic in practice.To solve the problem,the theory of transformative use has been referred to for judgement in judicial practice.If there is a high level of transformation of the borrowed character element,it may constitute transformative use,which is fair.Considering the protection of character elements in works,although there are limitations of copyright law mode,the other ways,like trademark law mode and anti-unfair competition law mode,do more harm than good and are not suitable alternatives.Therefore,to provide effective protection for the character elements in the works,copyright law is still the essence.In order to coordinate the relationship and balance the interests between fan works and original works,law improvement way and technical innovation way should be further advanced respectively.Specifically speaking,the former includes introducing transformative use into fair use system and establishing independent merchandising right system.The latter includes establishing guiding cases with binding force of reference and advocating the use of Creative Commons.