The "poaching" And "rebirth" Of The Text

Re-creation of the prior works has long existed in the history.With the development of new media and the Internet,it has been renewed as fanfiction.With analysis of the related literatures and cases,this thesis aims to give a clear explanation of fan-creation behavior within copyright law frame and instruct the type of copyright disputes caused by fanfiction,and also,to give suggestions for the judicial decision on fanfiction relevant copyright disputes,and to explore the solution of copyright disputes with fanfictionFan-creation is a behavior in which a consumer of a prior work pursues a unique consumption demand,transforms the original context,and creates a new fictional work.However,with the development of fan-creation,it gradually converts to commercial use.Fan-creation uses the original context as a material,and performs a re-creation.On the one hand,the "poaching" use of the original material may infringe the copyright of the original copyright owner;on the other hand,the misunderstanding and distortion of the original author’s intention may infringe the original copyright owner’s personal rights.Then,copyright disputes related to fan-creation exist.Clarifying the rules for the determination of copyright infringement can guide fan-creation judicial disputes on copyright disputes.Clear-cutting the originality of the original is the premise of the copyright infringement."Substantial similarity" is the most important factor in the determination of copyright infringement.For the substantive similar judgments in fan-creation,there are certain drawbacks to the application of the "integrated test method" or the "abstract test method" alone.The"comprehensive test method" combined with the two can play an important role.In the case of infringement determination,it is also necessary to pay attention to the difference between infringement adaptation and a small amount of material reference.The overall adaptation of Fanfiction is substantially similar to the original work and may infringe upon the original adaptation rights.The reference to a small amount of material may still create a completely new work that is completely independent of the original text.Fair use is the most important defense of the defendant in the copyright dispute related to fan-creation.China’s "Copyright Law" adopts closed-ended clauses when stipulations of fair use,so that fan-creation does not have the possibility of establishing a reasonable use.In the United States,a series of jurisprudence establishes the transformative use" rule,which provides space for the establishment of reasonable use of fan-creative behavior.When judging whether a fan fiction work is a transformative use of the original work in a specific case,the context of the use of the original work and the degree of substitution of the same works with the original market and the potential market should be discussed from the work of the same person.If fan-creation recreates the original work’s artistic value and the external market value through the transformation of the context and the market,it is transformative use.In addition,fair use should also include a comprehensive consideration of the "the type of the work being used","the amount of the adapted part in the recreated work" and "the impact on the work’s market".Through the guiding cases,the transformative use rules can be introduced into the judicial practice of copyright disputes in China,which can effectively distinguish the infringement copy,infringement adaptation and fair use behavior in the author’s creative activities.To this end,it is necessary to modify the fair use clauses in China’s current "Copyright Law" to adapt it to the transformative use rules.The construction of a pre-trial dispute resolution system for fan-creation can save the judicial cost while avoiding the risk of infringement in advance.