Research On The Judicial Judgment Of The Subsidiary Similarity Of Audio-Visual Works

With the continuous expansion of the scope of audio-visual works and the continuous development of the film and television industry,the phenomenon of the infringement of audio-visual works is also increasing year by year.The infringement of film and television works not only affects the interests of copyright owners but also affects the commercial market.Due to the more and more concealment of infringement,the substantial similarity judgment plays an increasingly important role in the recognition of copyright infringement.The judgment method of substantial similarity can effectively protect the copyright owner and sanction the infringer.Although material similarity judgment has not been determined by the copyright law legislation in China,it has been widely used in practice.Guiding Case No.81 also confirmed the status of material similarity judgment in the infringement of audio-visual works.In 2020,the Supreme People’s Court issued the Guiding Opinions on the Uniform Application of Laws and Strengthening the Search of Class Cases(Trial),which required that the search of class cases should be carried out for cases that lacked clear judgment rules or had not yet formed a unified judgment rules,which further clarified that the material similarity judgment method is an important judgment rule.Through the retrieval and analysis of the infringement cases of audio-visual works,this paper finds out some problems in the judgment of substantial similarity of audio-visual works in China,including the disunity of the judgment methods and the disunity of the judgment subjects.In practice,judges make choices on substantive similarity judgments based on different theoretical bases.Although supported by theoretical basis and able to realize the justice of individual cases,a stable and unified judgment is not formed on the whole,which makes substantive similarity judgments lack the predictability of judgment and the stability of law.Overall impressions approach,abstract approach comes from the American judicial practice,the method itself is a huge difference,different ways to use itself of audiovisual works substantial similarity judgment will produce different recognition results,at the same time as our country’s legislation is not clear,different courts usage is different,also affect the process of substantial similarity judgment result.The above problems are caused by the fact that China’s legislation has not made clear the substantive similarity judgment rules,originality,and the principle of distinguishing between thought and expression.At the same time,the reason that the substantive similarity judgment rules can not be unified is that the balance of interests is not clear in audio-visual works.This paper analyzes the origin of the substantive similarity judgment system in China and the application of substantive similarity judgment in practice,and measures and chooses the balance of interests in audio-visual works according to the characteristics and interests of audio-visual works.In order to improve the judgment of substantial similarity in China’s audio-visual works,we should take the balance of interests as the guide and implementation to determine the comprehensive factors for substantive consideration,the subject and the judgment method of substantial similarity judgment,and make the choice that can best balance the interests,most conform to the copyright law to protect copyright and stimulate creation.