The Rules For Determining Substantial Similarity Of Musical Works In American Law And Their Implications For My Countr

U.S.courts determine whether a defendant has infringed and determine the standards of infringement in the process according to the following two procedures: first,the plaintiff needs to prove that he has a valid copyright in the work;infringes one or more copyrights of the copyright owner.There are also two steps for the determination of the second standard: one is whether the defendant has in fact copied the plaintiff’s work,and the other is whether the defendant has copied the copyright-protected expression in the plaintiff’s work and is sufficient to constitute infringement.The judgment of "whether plagiarism is sufficient to constitute infringement" is the judgment of "substantially similar".Since at least the 17 th century,musicians have been borrowing musical elements from previous works when composing new music.Music borrowing can take many forms,such as transcription,variation,quotation,paraphrase,imitation,allusions,and sampling.The real legal issues raised by music borrowing are how and how much borrowing is excessive,what constitutes plagiarism,and when is it for infringement.In the United States,with the change of time,the development of technology and the change of people’s cognition,the judgment methods of "substantial similarity" by different circuit courts at different stages can be roughly divided into two types: the internal and external two-step test method and the Abstraction-filtering-contrast three-step test method,both of which follow the essence of US copyright law only protecting expression,and respect the characteristics of different works such as music,text,and computer.But the legal test used to determine liability for copyright infringement is one of the most maligned in the U.S.intellectual property arena because it is entirely set by judges,never set by Congress,and never weighed by the Supreme Court.method to ensure consistency.This makes substantive similarity without uniform applicable conditions,nor does the law stipulate the constituent elements of substantive similarity.At the same time,the inertia of American case law will hinder the protection of modern music genres such as jazz,and insisting on making factual judgments from the perspective of the "ordinary observer" will make many talented musical works receive far less protection than they should.protections and vague definitions of the scope of expert testimony cited are also detrimental to the development of the popular music industry.Too strong or too weak copyright protection is not conducive to the development of the copyright system.The proper protection of copyright is not only the goal pursued by copyright law,but also the goal that judges hope to achieve when hearing actual cases.The key to the improvement of the judgment of the substantial similarity of musical works lies in the uniform and standard test methods,concise and easy-to-understand jury instructions and complete rules for citing expert testimony.The improvement of the test method for the substantial similarity of musical works can consider simplifying the test instead of the inverse proportional rule,adopting the professional audience perspective for some niche music genres,and introducing the MEA test method.For the simplification of jury instructions,music-related terms and legal language explanations can be added to jury instructions for music cases.As for expanding the scope of citation of expert testimony in music infringement cases,it may be considered to invoke the US Federal Rule of Evidence 706,and the court shall appoint an expert to provide testimony as a neutral party.At the same time,through theoretical and practical research on the substantial similarity of American musical works,combined with judicial practice in my country,in view of the problem of inconsistent standards for the determination of substantial similarity of musical works in my country,the "ordinary observer" test method can be used for reference,so as to avoid the judgment of the works."Analysis and deconstruction" to form a unified judgment method;for the problem of unreasonable judgment subjects,the concept of "target audience"should be introduced to replace "ordinary audience",and the professional characteristics of musical works should be respected;"The scope of judgment includes more elements of musical performance and expands the scope of the definition of musical works.