On The Problem Of Substantial Similarity In Narrative Fiction

With the prevailing of Internet in digital age,the infringement of copyright violation has become more and more serious.Piracy infringement has already became the ghost of the development of network literature industry.The criterion of “contact and substantial similarity” has already became a set of potential rules in theory and judicial practice in our country,and the ways to determine substantial similarity plays an important role.Among the narrative fiction,the current law in our country doesn't stipulate explicitly and systematically in ways of determine substantial similarity,the detail method varies from case to case,and it is controversial as the online piracy infringement grows.For narrative fiction like novels and plays,the way of “Holistic Methods” ignores the public interests,which violate the legislative purpose of copyrights law,for it is aims to stipulate and promote creation.So it is crucial to perfect further when it refers to how to balance the interests of author and the public advantages in judicial practice of specific cases.There are five parts in the article:The first part refers to the basic information of chosen cases,summarizing the disputed points of both sides,it is about whether two works constitute infringement or not and made a discussion for substantive similarity of two works.By contrast from the perspective of plot,character set and character relation,language expression,made a conclusion that two works did not constitute similarity.But the Holistic Method in judging substantive similarity also has it's shortcoming,for it can not but be regrettable omissions and it is non-uniformity.Providing a foundation for the following analysis,which is the way to determinate substantive similarity in copyright infringement.The second part made a brief description of the current ways to determinate copyright infringement,and analyzed the theoretical foundation of the copyright infringement.First of all,we talked about the idea/expression dichotomy,which is the basis of whether the content of a work can be protected by copyright law,only expressions of a work can be protected,rather than the idea itself.Then,we expound the basis of whether the work can be protected from the perspective of originality,which means a work needs to be done independently.Through the discussion of theory,we set forth the theory basis of substantive similarity,when it refers to contrast between two works,what we should take consideration is the original expression of two works.Finally,two ways of determine substantive similarity in practice areclarified,one is “the Holistic Methods”,which look at the work as a whole,made no division or classification.The other is “the Abstraction Test”,which is stress the expression part,and will divide the work into two parts,exclude the idea,which is not protected by copyright law.The third part compared the substantial similarity with America.It's no doubt that the substantial similarity plays an important role in the copyright infringement,most of the settlements in our country are derivative from America.So the article is mainly based on America,and also on the standard of Japan.In determine substantial similarity in Japan,it emphasized on the quality,and confirmed the importance of the quintessence part for determine substantial similarity in works.There are three main ways to determine substantial similarity,which is Holistic Methods,the Abstraction Test and the Internal and External Test.The three ways formed in cases and became the influential standard.By searching the ways to determine the substantial similarity in America and analyze the related cases,try to seek the protection measures and the legislative ideas which worth studying for us,and provide a reference for the determination of the narrative fiction.The forth part set forth in the problem we met in determine the infringement of narrative fiction,and also the disadvantages in the current stage.The are four parts in this part: 1.The shortcoming of the “Holistic Method”.The creative space of narrative fiction is more wider than any other works,so it's a trend to use the “Holistic Method” to make up the defective of“the Abstraction Test”.For the Abstraction Test for copyright infringement causes the phenomenon of the endless attention to trees at the expense of forests,and which lowered the function of copyright protection.But what we should see is that the Holistic Method can not solve all the existing problem,it is actually contradict to freedom of expression.2.The degree of originality varies from work to work.In judicial practice,narrative fiction often as a kind of work which have high originality,and judge it through the standard of “General Rational”.But in fact,the narrative fiction also have difference in the degree of originality,for the originality of assembly work and the work which uses the public material are less than the original narrative work.Besides,the quality and quantity of infringement part is crucial to substantive similarity.3.The feasibility analysis of if the market substitution principle in economics works in determination of substantive similarity.With the overemphasizes on moral rights,the phenomenon of neglect of property and emphasis on human rights often appears in judicial practice.But what we should know is that the copyright infringement essentially caused the owner's property harm,and besides,it is easier to measure than moralrights.The principle based on the market shares and the approximate expression in market,it is correspond to the purpose of seeking property rights and is reasonable.4.The deficiency of defense of the copyright law in our country.There are no standard of defense causes,and it needed improve in judicial practice,while the closure rules in legislation cannot fit the constant development of reality.The fifth part brings the suggestions of how to improve the ways to determination the infringement of substantial similarity.It's an important criterion for whether a narrative fiction constitutes infringement,and plays a role in the well-ordered literature market.But what we should know is that it cannot adjust immediately,we can also gradually improve it with the change of social and economic environment.This part focus on the disadvantages of the preceding part of the text,and make four suggestions for how to make it easier to determine the substantive similarity in our judicial practice: 1.Coordinate the Abstraction Test in determine the infringement of narrative fiction.For the determination of substantive similarity in narrative work,it's better to combine the “Holistic Method” with the “Abstraction Test”,analyze the work from the overall respect at first,and then make a contrast between the similar parts,and exclude the idea part.2.Make the reader standard in narrative fiction.Set different principals in determining the narrative fiction with different originality.Introduce the expert opinion if it's proper.3.Bring in the factor of market substitution.Analyze the substantive similarity in the perspective of economics,take the market share as the basis of infringement.4.Specific the defenses.Expand the scope of reasonable use,cancel the closed legislation and make the determination of cases in judicial practice reasonable.