Research On The Determination Of Copyright Infringement

The copyright infringement standard has a significant position and has important research value.It is the basis for judging whether the alleged work infringes the copyright and the core legal issue in handling copyright disputes.This thesis focuses on the standards and methods for the determination of copyright infringement.It points out the main disadvantages of the existing mainstream determination method "substantial similarity",and introduces and studies the "new" method of copyright infringement determination,which is the "virtually identical" used in the latest jurisprudence of the United States Court of Appeals for the Ninth Circuit as a supplementary method for judging copyright infringement in special fields.This thesis aims to inspiring the development of China's copyright theory and judicial practice,so that related judgments can be more reasonable,legal and fair.This thesis consists of four parts.The first part is chapters 1 and 2.It mainly expounds the general situation of copyright infringement determination.It introduces what is copyright infringement(including its definition and constituent elements)and two ways of the determination of copyright infringement.The second part is Chapter3,which mainly elaborates three methods of identifying "substantial similarity" of works that are mainly used in judicial practice in China and the United States through cases,namely abstractions test,two-step analytic process and audience test.The third part,Chapter 4,introduces the theoretical basis and necessity of the "virtually identical" standard,and analyzes the application of it through case studies.Finally,Chapter 5 summarizes the article.The author believes that the “virtually identical"standard can to some extent fill the protection gap of current works with limited expressions and give “thin” copyright protection to such works.Also,this standard can effectively reduce copyright transaction costs and judicial costs,and encourage creators to use the public domain expression thus stimulating more creations.This is in line with the current general trend of strengthening intellectual property protection in China.This thesis researches the determination of copyright infringement from the perspective of legal theory and judicial practice.It also introduces the latest judicial precedents in the United States,which will benefit China from learning the mature copyright system in the United States and the new ideas as well as the new judicial trends in its judgment.