An Empirical Analysis Of Infringement Cases Of Novel Adaptation Right In The Network Environment

The rapid development of mobile internet technology has broken the communication barrier between copyright owners and users,enabling everyone to become a communicator and creator,and promoting the development of network literature industry.At present,IP development of novel works presents a hot scene,IP derivative involves TV series,movies,animation,games,network drama and other fields.Behind the prosperity of IP adaptation of novel works,the infringement crisis of the right of adaptation of network literature works is also spreading.In judicial practice,the number of infringement cases of the right of adaptation of novel is also growing exponentially.In this context,the infringement of the right of adaptation and the result of infringement are more hidden,the scope of infringement is wider and there may even be transnational infringement.However,there is no clear regulation on the protection scope of the right of adaptation in China’s current copyright law,which undoubtedly increases the difficulty of judicial judgment on the infringement of the right of novel adaptation.This means that there must be a lot of problems in the trial of the infringement of the right to fiction adaptation.Therefore,this paper attempts to analyze the current cases of infringement of the right to fiction adaptation through the method of case statistical analysis,find out the existing problems and propose targeted improvement methods.Through the statistical analysis of the cases of infringement of the right of fiction adaptation,it is found that there are many problems in the process of judicial identification of infringement of the right of fiction adaptation.In the network environment,the infringement of the right to adapt a novel begins to change from simple text expression to implicit non-text expression elements.Some courts have logical defects when applying the rule of "contact + substantial similarity" to the determination of infringement,that is,there is a DE facto reference source relationship between the prior work and the alleged infringement work after the substantial similarity is determined.In addition,the principle of fault liability is generally applied to the court in cases of infringement of the right of fiction adaptation,which makes it more difficult for the plaintiff to prove the defendant’s infringement.Under the principle of fault liability,the constitutive elements of general tort liability adopt the "four elements theory",which is not strictly applied by the court in the trial of infringement cases of the right of fiction adaptation.In addition,it is also very difficult to prove the amount of damages for infringement,the amount of compensation the court is often lower than the amount of the plaintiff’s claim.Generally,in the judgment of copyright infringement cases,there are grounds for reasonable use exemption,but it is very rare in the infringement of the right of novel adaptation.There are many problems in the judgment of the infringement case of the right to modify the novel.A more detailed regulation of the object of protection in the copyright law can effectively solve the problem that the court applies the "thought expression dichotomy" in the judgment.Reconstructing the identification rules of "contact + substantial similarity" in the copyright law and establishing the guiding principles applicable to the identification method of substantial similarity can comprehensively solve the problems existing in the identification of the infringement of the right of fiction adaptation.We should start from the copyright legislation to solve the problem of the rigid application of the principle of fault liability in the judgment of a case and the failure to strictly apply the constitutive elements of tort liability.For example,stipulate the application of presumption of fault in the infringement of the right of fiction adaptation or establish the guiding principle of strict application of constitutive elements in the determination of tort liability.The amount of damages for the infringement of the right to change the novel is generally low in the judgment of the case.This problem can be effectively solved by increasing the amount of legal damages,reducing the standard of proof for determining the amount of damages,and introducing the system of evidence disclosure.Finally,on the issue that some courts exclude the application of reasonable application of exemption of liability in the judgment of the case of novel adaptation right,this paper puts forward specific Suggestions from three aspects: expanding the scope of content of reasonable use,increasing the disclosure clauses of reasonable use,and increasing the general guiding principles of reasonable use.