Research On The Law Application Of Fan Fiction

With the strengthening of the concept of intellectual property protection and the prevalence of the simple morality that “sowing leads to harvesting”,the phenomenon in judicial practice that protecting the intelligence products which usually cannot meet the requirements of the specialize laws of intellectual property rights through the approach of Anti-unfair Competition Law has become increasingly prominent in recent years.Cases regarding fan fictions,utilizing the popularity of the original character elements,have become a new type of cases where “intelligence products have been stolen”,and fall within the intersection of copyright law and anti-unfair competition law.Without clear understanding of the Supreme People's Court regarding the “limited supplementary protection theory”,the existing judicial judgments hold that fan fictions constitute unfair competition on the basis that they do not constitute copyright infringements.This kind of gray product not only has the problem of the recognition of copyright legality,but also raises the debate between the academic and judiciary on the scope of application of the anti-unfair competition law and its border of protection.This paper takes fan fiction as the research object,and analyzes the law application of fan fiction under the perspective of Copyright Law and Anti-unfair Competition Law by sorting out the domestic and international cases and comparing with German law.In addition to the introduction and conclusion,this paper is divided into three parts: The first part is based on the definition of fan fiction and puts forward the problems with two fan fiction disputes,including whether the character elements have copyrightability,and whether the judicial practice can protect the intelligence products which usually can't meet the requirements of the specialize laws of intellectual property rights through the approach of Anti-unfair Competition Law.The second part focuses on the copyrightability of the character elements.By learning American cases and the copyright theory,this paper holds the view that most character elements are not copyrightable;and taking the interests and the spirit of the copyright law of the prosperous cultural market into account,fair use can be used to deal with the legality of fan fiction.The third part considers the phenomenon that judicial practice applies the principle clause of Anti-unfair Competition Law to regulate fan fiction,by sorting out the main doctrines of the relationship between intellectual property law and anti-unfair competition law in the academic and judiciary.From the aspects of interest attribute,competitive attribute,and significant damage of character elements,this paper draws a conclusion that fan fiction can't be regulated by applying the principle clause of Anti-unfair Competition Law,and can be only applied Copyright Law through legal interpretation.