Plagiarism Determination Research

With the rapid development of social economy,we have more opportunities to come into contact with many types of works.It not only brings convenience to the dissemination of works,but also increases the risk of plagiarism.Plagiarism has been criticized by the public since ancient times,and the increasing frequency of plagiarism in life has aroused the attention of scholars and judicial staff.China's copyright law only makes general provisions on plagiarism,but does not make provisions on its connotation and identification standard.This paper analyzes and summarizes the typical cases of plagiarism in recent four years from the classic cases of words,music,film and art works.In the process of sorting out more than70 cases,it is found that most of these cases apply the general and non-standard "copyright dispute" as the cause of action,and few cases are classified from the four levels of cause of action according to the provisions.Only one case listed the "identification of plagiarism and plagiarism" as the focus of case dispute for discussion,and the methods of identifying plagiarism are diverse but not unified.Based on the horizontal analysis of similar cases,from the perspective of the major premise cited in the judgment,the basis of judgment is varied.In the long run,it is not only harmful to the protection of the legitimate rights and interests of copyright owners,but also harmful to the authority of judicial organs.The reasons are as follows: there is no clear definition of plagiarism in academic circles,and the elements of plagiarism behavior and responsibility are confused,and there are some differences between the current legislative situation and judicial practice."What is plagiarism" is the starting point of reasonable regulation of plagiarism.After analyzing plagiarism and related concepts,it is found that plagiarism is different from other copyright infringement acts such as illegal reproduction,unauthorized adaptation,etc.There are some seemingly infringing acts in our daily life,such as copying,coincidence,manuscript washing,and so on.When defining these concepts in the vague area,we must be cautious,abide by the legislative purpose of copyright law,protect the legitimate rights and interests of the author,and promote the dissemination of works and cultural prosperity.Originality principle and thought / expression dichotomy are the core principles and basic principles of identifying plagiarism in the field of copyright law.In order to avoid the inclusion of factors beyond the scope of copyright law protection,two basic principles should be applied to delimit the scope of copyright owner's exclusive rights before determining whether the alleged infringement constitutes plagiarism.Therefore,it is necessary to conduct in-depth research on the basic concepts and judgment standards of the two basic principles.At present,in the academic research field of copyright law in China,there are few research results on the identification methods and standards of plagiarism,but some commonly used methods have been summarized in judicial practice.Commonly used are three-step test method,overall perception method,rational audience test method,internal and external combination test method.With the continuous construction and development of the rule of law society in our country,the theoretical and practical level of courts at all levels in various places has maintained a high level on the whole,but there are some deficiencies in some areas.It shows that the boundary of thought expression is unclear,the judge's understanding of originality is one-sided,and the subject,procedure and standard of plagiarism identification are not unified.Introducing the concept of "plagiarism" into China's copyright law is only the starting point of its regulation.If we want to achieve independent,effective and reasonable regulation,we must fully analyze the connotation of plagiarism and make corresponding institutional arrangements.To sum up,after the above analysis and argumentation,this paper puts forward some suggestions to improve the identification system of plagiarism in China under the guidance of the principle of balance of interests,the principle of "contact + substantial similarity" and the principle of unification of legal effect and social effect.According to the "small coin" theory,different kinds of standards are suitable for different types of works.The identification step can be divided into three steps: determining the power base,excluding part of the content and comparing the rest.In the identification,the combination of subjectivity and objectivity is used to judge the originality of the work,and distinguish the internal expression and external expression of the work.