Research On The Judicial Judgment Method Of Substantive Similarity Infringement In Copyright Law

In the context of the continuous emergence of new technologies and the growing prosperity of the cultural market,how to better protect copyrights through laws,combat infringements,and maintain a balance between personal interests and social public interests is an issue that need to be solved urgently.How to solve the similarity infringement is one of the concentrated manifestations of this issue.The existence of infringement is the key to determining the liability for infringement.The identification of copyright infringement has always been a difficult point in judicial practice because of the complexity of the works involved in the case itself,the lack of specific rules in current legislation,and the balance between personal interests and social public interests.In the long-term academic research and judicial practice,in the face of copyright infringement disputes,China has basically formed an infringement determination method based on the "the dichotomy principle of thought and expression" and "original theory",and "substantive similarity plus contact" as the infringement determination method.However,due to the lack of unified and specific judgment standards and methods,under the influence of different ideas and cognitions,judges have adopted different methods to determine substantive similarity in practice.This has an adverse effect on interests of copyright owners and the judicial unity of the country.This paper will take two typical cases as samples for analysis----Guiding Case No.81 and "Qiong Yao v.Yu Zheng".This paper will combine relevant theoretical research and analyze the reasons for the different judgment results by comparing the two cases,so as to deeply discuss the way to determine whether it constitutes the substantive similarity infringement in judicial practice.In the introduction part of the paper,the two sample cases are introduced.The main body is divided into four parts,from theoretical combing to current situation elaboration to comparative analysis,and finally a more feasible conclusion is reached.The first part sorts out the existing basic theories and concepts.The dichotomy of thought and expression and the originality of works are the theoretical basis of copyright.As a basic standpoint,interest measurement plays an important role in the field of copyright.The three are the basis for handling copyright infringement cases.In addition,this part also defines the basic concept"substantive similarity" involved in the article,which lays a foundation for the research.The second part focuses on the problems existing in the judgment of substantive similarity infringement in the current copyright law.In terms of legislation,the relevant basic theories have not been legalized,and the fuzziness of relevant clauses has brought difficulties for the trial of such cases.In judicature,because of the non-unified theories and vague laws,judges adopt different ways of judicatory judgment in their discretion,which brings about adverse effects.The third part analyzes the specific content of the two sample cases from three aspects to provide support for proposing guiding judicial judgment methods.The three aspects are:the method of delimiting the scope of protection of the work,the method of making substantive similarity judgments on the elements of the protected work,and other factors that affect the determination of substantively similar infringement.Other factors include the influence of "quality" and "quantity"that constitute the substantively similar parts,"audience experience",interest measurement and prediction of social effects.Based on the above-mentioned theories and analysis,the fourth part attempts to propose specific methods for judging substantive similarity infringements in judicial practice:the basic steps of judging are ion of elements,filtering and exclusion,comparative analysis,quantitative inspection,and supplemented by "audience experience." to examine the work as a whole.In this process,it is necessary to properly deal with the "fair use" as a plea,introduce sociological explanation to predict the corresponding social effects,and comprehensively measure the interests of all parties.Finally,a legal and reasonable judgment is reached.