On The Legal Protection Of Fictional Characters

Recently copyright dispute cases of fictional characters have been increasing year by year.However,we can often find that the similar cases even the same cases may have the exact opposite results in the trial practices.Based on the definition of fictional characters,this paper attempts to analyze its essence and establish the justifiability of fictional characters' copyright protection.The paper analyzes the relationship between the characters and the essence of the novels,which is considered that their composition relationship are part and whole.In particular,it is necessary to realize that if one novel lacks characters as its composition parts,then it cannot be called a novel.The fictional characters may be replaceable.When they have been created in the novel,they become unique.The essence of a fictional character is a description of the character reflected the conception,design and organization by the author,which is considered an original expression in the legal sense of the copyright law.Judging whether the fictional characters are infringed on their copyright,the trial judges should not judge the characters removing them from the works.What they should do is they should consider the two works involved are compared as a whole based on the principle of literary creation.A principle of "access and substantial similarity" should be applied in the trial practice,in order to determine whether the alleged infringing work has used the original expression of the previous work.Originality is the minimum requirement of the copyright law for a work.It does not examine the artistic level of the work,but determines whether the author independently created it,and whether the expression is original.The dichotomy of idea and expression is a basic principle of the copyright law developed under the requirement of originality.It originates from the essential characteristics of "work" defined in the copyright law:the nature of creation is imitated,which evolves into a view that "the idea is limited and the ways of expression are infinite".From the perspective of Economic Analysis of Law,the idea to protect works is not economical as well.Judges cannot have the sense for seeking whether the ideas are original easily,especially in the trialing practice of copyright infringement cases.They need to have exhausted all the similar ideas in involved works,and then determine which "idea" is original.However,this method actually has no practicability and maneuverability.The relationship between originality and the dichotomy of idea and expression is that the latter one is the way to judge whether it is a work in the sense of copyright,and the former one is the standard to distinguish idea and expression in the process of judgment based on the dichotomy.By case analysis and discussion of the basic principles of the copyright law,the reason for the problem of fictional characters' copyright protection in trial practice is lack of a deep understanding of the basic principles of the copyright law in this article.Confronting with the "new" problems of copyright infringement along with the social development,some judges are not inclined to thinking about and exploring the basic theory of copyright.Instead,they seek to maintain stability and abuse the rules of against unfair competition.With the assistance of the against unfair competition law,they pursue the idea of error-free decisions.However,it is a fundamental contradiction in the legal protection of fictional characters between the copyright law and the against unfair competition law.The two laws are not the two coordinate ways,nor a supplementary relationship in the solution of the problem.The copyright law should be applied as the suitable legal solution of those cases.The fictional characters are a part of the work in the sense of the copyright law,which is the only option to provide their copyright protection for copyright infringement.This is not only the meaning and value of the copyright law,but also the present needs raised by individual economic society for the copyright law.To construct a legal protection system of copyright-related rights for the fictional characters,we should take the basic principles of literary creation as the starting point,have a deeper understanding of the basic theories of the copyright law and along with the changes of era have the problems been solved within the scope of the copyright law.