The Analysis On The Criterion Of Work's Materially Similar Infringement

Firstly,the binary value theory of the balance of copyright interests requires that the law must protect the authors' legitimate interests and allows the authors to monopolize their works within a reasonable period of time,including the right not to be violated by others.More and more copyright owners pick up legal weapons to safeguard their own legitimate interests.It brings great difficulties to judicial practice.The most important thing to judge whether the alleged work is infringing is the substantive and similar judgment.At present,the general method of abstract separation and the overall perception in our country are generally used.However,there are many problems in the judgments of substantive and similar infringement,which can be divided into two kinds of internal and external problems.The substantive similarity to the external standard of judgment of infringement means that the problem to be solved behind the standard itself is a problem.The copyright only protects the expression but does not protect the ideology.This is the basic connotation of the dichotomy of thought and expression.However,the expression is not entirely different from the thought and some are mixed with the thought."What's more,the law doesn't expressly stipulate substantive and similar infringement judgments,so most of the judiciaries rely on the discretion of the judges.However,the discretion of the judges is not properly guided so that the second instance of the same case often appears different results.Substantive similarity to determine the standard internal problems of the standard is the problem itself.separation law is limited by thought and expression.On the one hand,it is difficult to distinguish thoughts and expression in judging.On the other hand,abstract separation law can even reduce the protection of copyright owners because of excessive separation.Judging from the perspective of the general audience from the perspective of the general audience,the holistic perception method avoids the difficulty of distinguishing between thought and expression,but it is also easy to protect the ideological expression and thus squeeze public space.Because the other value of copyright is to ensure that the public has the right to be close to the work.First,originality does not require the creation of the first,nor is it forbidden by reference,but also for the sake of thinking.Second,as a potential creator of creative work,the public should give it a positive motivation and inspiration.Moreover,the overall perception method is subject to subjective judgments,the results are always unsatisfactory,and the general audience's perspective doesn't fully adapt to all types of works.As for the problems existed in the substantive and similar infringement judgment standards,the existing standards should be improved and thee new judgment standards should be put forward in time to make up for the deficiencies of the existing standards or to reinforce the reliability of existing standards in judging conclusions.Therefore,in order to improve the abstract separation law,we should guide the judge's discretion in the direction of judgments.That is to say,the judges should make judgments on ideas and expressions based on their own known life experiences and theoretical knowledge.Meanwhile,they should combine the degree of originality and follow the principle of the balance of legitimacy and interests.Only by making the best possible judgment,we can ensure that the protection of copyright owners is not reduced by over-interpretation.Moreover,the audiences should be classified according to the overall perception of the audiences.The judge should do the duty of attention in varying degrees according to different types of works.From the bottom to the top,the audiences respectively can be classified into,"the general audience," "a reader with certain obligations" and "experts ".Only by doing so,we can combine the advantages of the abstract separation method and the overall perception method.When the abstract separation method and the overall perception method are not well judged,we can also consider the market share law.Through the changes of the market share of the original works before and after the production of the works,it is possible to see whether the works after the works have the market share of the previous works.Comprehensive use of the above several criteria can balance the author's legitimate interests.Meanwhile,it also leaves room for the public to re-create.