| The judgement of "substantial similarity" of music works originates from American judicial practice and has been further developed.In the Arnstein V Poter case,the second circuit court first proposed a method for judging the infringement of musical works,that is,the plaintiff should prove(1)that the defendant had"copying-in-fact" of his work(2)His work is "Unlawful Appropriation".The direct proof of "copying-in-fact" is often difficult to achieve in judicial practice.By proving whether there is "Probative Similarity" between the works of the original defendant and the "Inverse Ratio Rule",the defendant is presumed "The existence of the"Access" plaintiffs work,and the proof of "Unlawful Appropriation" is a judgment on whether there is a "substantial similarity" between music works.Clarifying the concepts of "preliminary similarity" and "substantial similarity" is of great significance in clarifying the differences in their judgment standards.In the Krofft case,the Ninth Circuit proposed the "Extrinsic/Intrinsic Test" as a method of substantially similar judgment.In the future judicial practice,there is no uniform standard for judging the "substantial similarity" of music works,and it has also become a focus of controversy in the theoretical world.As the core part of the infringement determination of music works,the establishment of the "substantial similarity" determination standard is imminent,especially in recent years,with the development of digital music technology,the sound recordings have presented various forms,clarifying the "substantial similarity"of music works The essence,that is,the method of judgment,is of vital importance to both theory and practice. |
