Research On Intellectual Property Protection Of Fictional Characters

In recent years,under the guidance and support of national policies,China cultural undertakings have entered a stage of great development and prosperity.The role of fictional characters become more important because of its great attraction and broad market prospects.On the one hand,it not only stimulates the development of current cultural undertakings but also enriches the spiritual life of the people.On the other hand,under the current legal system of China,the intellectual property rights of fictional characters are difficult to be fully protected.In social life,some market participants find that fictional characters can bring business opportunities so they utilize them to make huge economic profits.However,there is no independent provision in China current intellectual property legal system to protect fictional characters.Judging from the current judicial practice,intellectual property disputes of fictional characters often have different judgments,different punishments and lack of persuasiveness.Therefore,the problem of incomplete protection of intellectual property rights of fictional characters needs to be solved urgently.In China,the proprietary rights have not been clarified by the legislation.Copyright law,trademark law and anti-unfair competition law are commonly used in the settlement of intellectual property disputes of fictional characters.These systems have limitations and cannot provide all-round protection.The copyright law does not explicitly stipulate the role of the protectedworks.Some fictional characters can only be protected by the whole work.Some commercial behaviors are difficult to regulate and the copyright law of individualized elements such as classic movements cannot be adjusted.The calculation method of damage compensation is insufficient.On the one hand,it plagiarizes the original expression of the author.On the other hand,it uses the influence of the fictional character cannot be calculated by the number of infringing copies.The protection of fictional characters in the trademark law mainly through the trademark registration,and this approach has obvious limitations.For example,it is difficult for a fictional character to meet the significant requirement in the trademark law.The economic cost of applying for registration is high and can only be used on the approved product category.After successful registration,it must be actually used or otherwise there is a risk of being revoked.In fact,only a small part of the true creators of the characters conduct related business activities,and most creators of fictional characters rarely register them as trademarks.The anti-unfair competition law adjusts to the operator and has a competitive relationship,and the author of the fictional character may not be protected because it is not engaged in commercial business.In addition,the anti-unfair competition law can only provide after-the-fact relief making the author a passive side in protecting his fictional character work.Therefore,the following suggestions are put forward in response to the above issues: strengthen the protection of copyright law: setting clear standards of infringement and reasonable adjustment of compensation standards;improving the protection of trademark law: building special protection of well-known fictional character trademarks,improving China defense trademark system,and increase trademark law Judicial interpretation of the protection of fictional character;enriching the protection content of the anti-unfair competition law: expanding the main body of anti-unfair competition behaviors and clearly defining the unfair competition behaviors of misappropriation of fictional characters.The above suggestions provide institutional guarantee for the protection of fictional characters.