A Study On The Cases Of Infringement Disputes Of "Fan Works"

"Fan works" is the product of the vigorous development of network literature.It is not a legal concept,but the title of a kind of works in the field of literature.Due to the lack of a clear legal definition of "Fan works" in China’s law,it has been wandering in the gray area between legal and illegal for a long time.In judicial practice,such cases also have different standards and controversial adjudication results.This paper analyzes several typical cases of infringement of Fan works in recent years,and concludes that the focus of the dispute is mainly on the legal nature of the "Fan works" and the types of copyright rights infringed,whether the character elements are protected by copyright law,and whether the creation of borrowing elements is regulated by Law for Countering Unfair Competition.First of all,both "Fan works" and the deductive works belong to the works of the second creation,which are dependent and original,but the former has a larger extension than the latter.We should analyze whether the creation of Fan works can be attributed to the deductive works according to the categories of borrowed elements.Fan works,which are different from the original works and have originality,created by borrowing the elements that constitute the original expression in the original works and using the basic expression in the original works,constitute the deductive works.If Fan works are not approved by the original author,Fan works will infringe the original author’s adaptation right.Secondly,the individual role name,character and relationship itself belong to the public domain,which does not constitute an original expression.For the "Fan works" that borrow these individual role elements does not meet the elements of the deductive works,it should be regarded as the original works.To a certain extent,we can see that the unique conception,choice and logical arrangement of the copyright owner constitute the expression protected by the copyright law.Therefore,in determining whether the character elements such as character name,character relationship and character constitute the original expression,we should combine the specific plot of the case story to analyze.Finally,when applying the anti unfair competition law to regulate the non deductive works of the same kind that only use the names of characters,we should take the four unfair competition behaviors listed in the anti law as the basis,rather than the principle provisions of the second article.Otherwise,the scope of protection of the original works will be too large,and "Fan works" will be wiped out,which is not conduciveto the development of China’s cultural undertakings.