Research On The Legal Issues Of Infringement Of Fan Fiction

Fan fictions are born on the basis of the original works.The attribute of this secondary creation makes them face infringement disputes while flourishing.Unlike foreign judicial practice,cases of infringement of fan fictions in China also show a tendency to apply Anti-Unfair Competition Law to extend protection.At present,the legal issues of infringement of fan fictions in China mainly focus on two points: whether fan fictions infringe the copyright of the original work and whether fan fictions can be regulated by the principle provisions of the Anti-Unfair Competition Law.Under the framework of Copyright Law,to judge whether a fan fiction is infringing or not,the first step is to use the "idea and expression dichotomy" to correctly divide the nature of the plot of the fan fiction using the original work.A "concrete" plot is original and delicate enough to constitute expression.Fan fictions are infringing if the "specific" plot of the original work is used without authorization and is substantially similar to the original work;conversely,fan fictions that use the "abstract" plot of the original work are not derivative works,and it is necessary to further judge whether the borrowed character elements can be independently protected by copyright law.A single role element is not copyrightable.Only highly identifiable characters that can make readers substitute the original plot content in new works can be identified as objects of protection under copyright law.Finally,according to the judgment results from the plot to the characters,the abstract separation method is used to judge the substantial similarity of the two works.Fan fictions that only use abstract elements of the original work and constitute fair use do not constitute an infringement of the copyright of the original work.After copyright law explicitly excludes infringement,according to our country’s current application rules of the two laws,combined with the "additional factors" standard of the United States and Germany,if the anti-unfair competition law is applicable to fan works,the following four points must be satisfied at the same time:The copyright law has been applied.There are additional considerations.The application behavior does not conflict with the legislative policy of the copyright law,and there is substantial competition between the parties to the lawsuit.On this basis,if fan fictions use the name of the original work or the information of the work for publicity and sales,the provisions of Article six "Use of a product name that has a certain influence on others" and Article eight "False or quoted Misunderstood Commercial Propaganda" clause.But only fan creation behavior does not meet the specific terms and conditions.If the principle clause is applied,it must meet its constituent elements.The article proposes that the judgment path of "competitive relationship-competitive behavior-competitive damage-interest measurement" should be strictly followed,and judgment based on the actual situation of the case.Fan fictions cannot be deemed to constitute unfair competition on the grounds that they violate integrity or morality.Based on the above analysis,in order to resolve the infringement disputes of fan fictions,A typological distinction should be made in the determination of copyright law.For eligible infringing fan fictions,an infringement compensation mechanism can be set up,giving fan fictions the opportunity to republish after modification,and paying compensation to the right holder to replace the infringing liability for stopping the infringement,so as to realize the interests of the public,fan authors and original authors.For the anti-unfair competition law,specific clauses must be used first when judging individual cases,and caution should be exercised on the premise of uniformly applying rules for the application of principled clauses.In addition,the fan industry can reasonably promote the CC agreement and rely on the self-discipline of industry creation to solve the source of infringement.