The Determination Of Copyright Infringement Is Similar In Substance

Generally,it is necessary to testify the legal facts of the defendant’s contact to the plaintiff’s works and existence of defendant’s replication,when plaintiff claims the defendant to plagiarize his works in the copyright infringement dispute.The court should distinguish the "literal similarity " or "non-literal similarity " when judge the existence of defendant’s replication.For the "literal similarity ",it can be judged based on the objective expression of works.But for the "non-literal similarity ",which defendant’s replication is not words to words but in his own way to reproduce,we need to judge whether there is substantial similarity between the two works.There are more situations with "non-literal similarity " in the works which according to historical themes adapted.But also because of their historic,originality and artistic,it is more difficult to judge the substantial similarity between the two works.In practice,there are two methods to judge whether the two works belong to substantial similarity."Overall sensory " test emphasizes “general observer’s” feelings,but "levels of abstract " test needs to abstract the content of the works to different levels which belongs to ideas or express.For different types of works,there are also differences in the selection of substantive similar judgment methods,which depends on the case situation.But,there is no unified method and standard to judge the substantial similarity between two works which are based on the historical adaptation in current judicial practice.This paper studies the methods and types of works in the judgment of substantial similarity and its theoretical basis,combined with the reality of the case in practice,whether or in what situation that the part of creative elements of works can be judged as substantial similarity.