The Application Of Abstract Generalization In The Recognition Of Originality In Literary Work

It is one of the value objectives of the copyright law to protect the right of authors and encourage creation.With the development of information network and social progress,the circulation scope and speed of works are accelerating.Those provide more mild soil for the copyright infringement.The inreconcilable contradiction between protecting the rights of authors and encouraging creation is becoming more and more serious.With the release of“Jin Xiu Wei Yang”,the plagiarism of nearly 200 novels in its original works has also drawn public attention.Due to various factors,only 11 authors finally filed a lawsuit.The case has lasted more than two years and no final verdict has yet been reached(May 8,2019 Beijing chaoyang district people's court made a judgment,but the appeal deadline has not passed,the referee has not taken effect).In fact,the trial time of literary works copyright infringement cases is generally long and the appeal rate is high in China,this is because judging whether the works involved constitute infringement is a very complicated matter.Literary works have their own uniqueness,the main tool is language to create a variety of images and then add a certain amount of imagination.Through the logic of the plot series to tell a story.In the trial of literary works copyright infringement cases,the court simply determined the content of the plaintiff's works according to the dichotomy of thought expression in early stage,the final judgment is reached by judging whether the content of the plaintiff's claim is thought or expression.Until 2014,the Beijing third intermediate people's court first put forward the concept of "abstract generalization" in the judgment of Chen zhe(qiong yao)v.yu zheng and other copyright infringement disputes,and take it as the main means of judging literary works infringement.The concept of abstract generalization has long been discussed by scholars,however,its application in China's judicial practice is relatively late.Compared with the tort identification methods adopted in the past,the abstract generalization method takes the "originality" identification of literary works as the focus.The view that copyright law only protects the expression of originality has been recognized by the judicial practice of various countries.It has become a common practice to judge whether the works involved in the case constitute infringement.Proving whether the contents of the plaintiff's works is original.However,abstract generalization is only a relatively fixed concept,which does not contain specific operational steps.Because judges have different understandings of "originality",it may lead to the phenomenon of "different judgments for the same case".which is also the main reason for the high appeal rate of such cases.There are two main problems in the application of abstract summary law in China's judicial practice.First,when a judge determines the originality of a literary work,he usually demonstrates the originality of the relevant content from the positive perspective,by analyzing the plaintiff's works word by word and sentence by sentence.Considering the universality of language and the fact that literary works reflect the characteristics of social life,the conclusion is weak and not convincing.The second is the lack of judgment documents on the plot and language.The judges do not have the original part of the specific standards and description.In the recognition of originality in literary works,it usually starts from plot and language.Through the arrangement of the judgment documents of similar cases,it can be found that the contents without originality are basically drawn directly in the form of conclusions,without specific identification standards or process of analysis and explanation.So the conclusion is naturally not strong.In order to make judges play a better guiding role,judges should demonstrate the originality of literary works from the opposite side,excluding the part which is not original in the relevant content of the works,and the rest is the part that is original and should be protected by the copyright law.In terms of plots,the plots of the plaintiff's works should be filtered from the aspects of publicly known materials and specific scenes;in terms of language,original analysis should be carried out based on sentence groups.Because "jinxiuweiyang case" triggered a long time of public discussion and thinking,social attention and influence are very wide,and the final decision of the case has not yet come out,so the relevant steps and specific identification criteria of abstract generalization method are demonstrated and tested in this case.The conclusion is drawn that the defendant's works do not constitute infringement on the plaintiff's works,after the final judgment result of the case is announced,the application of abstract generalization method in the recognition of originality in literary works will be improved correspondingly in combination with the court's judgment documents.