Research On The Identification Of Copyright Infringement Of Fanwork

Fanfic works are a new type of works arising with the popularity of the Internet.Fanfic culture originating in Japan has gradually developed in various countries.Fanfic works are not copies or copies of the original work,nor are they all deductions of the original work.In this case,how to determine whether a fanfic author constitutes infringement is the key to the problem.In order to guarantee the copyright protection of authors,encourage the vigorous development of fan culture and reduce the possible negative effects of fan works,it is necessary to clarify the identification method of the infringement of fan works.The identification of copyrighted works involves many key issues,such as the basic theory of copyright,the legal status of copyrighted works,and the relationship with the rights of the original author,which is a hot and difficult issue in the field of intellectual property in recent years.Fanfic works are works with originality and artistic value,which embodies the author’s understanding,judgment and choice of the original work and his own creation and conception.Therefore,the protection of Copyrights has theoretical legitimacy.To discuss the identification of copyright infringement does not mean denying the legitimacy of copyrighted works,but to clarify the relationship between copyrighted works and original works,to solve the conflict between them,so that the protection of rights and the development of the industry can be both.However,in judicial practice,there are some problems in the identification of Copyrights infringement of Copyrights,including unclear legal status of Copyrights,inconsistent originality standards,imperfect judgment methods of substantial similarity,and unpractical judgment elements for reasonable use.In combination with the copyright protection of fan works in the United States and Japan,generally speaking,the United States has relatively perfect regulations on fan works,while Japan is more tolerant of fan works,with relatively loose legislative and judicial regulations.Rules of the United States for the fan works copyright infringement is very worthy of reference,mainly involves the combination of two ideas: one is substantive,similar to that of the United States developed the "infringement" syllogism method,with the "overall observation" and "abstract test",the combination of readers standard as the final standard of infringement.The second is to legalize the borrowing of fan works from the original expression through the fair use system.The United States has perfect regulations on "deductive works",stipulating dozens of deductive works.Fan works are one of deductive works,and deductive works can constitute transformational use,which is a kind of fair use.It can be seen that the United States has combined transformational use with fair use system.In addition,the United States has developed a four-factor judgment method based on the three-step test method,which makes up for the inflexibility and unpracticality of the three-step test method in the civil law system.At the same time,the United States has also developed intellectual property rights sharing agreements to reduce the occurrence of disputes after the event in a pre-agreed way,which is conducive to creating an industry atmosphere of creative sharing and saving judicial resources.However,it should be noted that the exploration and development outside China are based on the choice and judgment of the legislative background and legal tradition outside China.When drawing on and absorbing experience from outside China,China should make a case-by-case analysis based on its national conditions.China has preliminarily established the rules for identifying copyrighted works,but it is not perfect.No matter how many characters and plots are borrowed from the original work,it is undeniable that fan fiction needs legal recognition,which is the demand of the market.China should improve the identification rules of copyrighted works from the following aspects: first,clarify the legal status of copyrighted works,clarify the relationship between deductive works and copyrighted works,and alleviate the awkward situation that there is no law to follow.The second is to perfect the judgment standard of substantive similarity,and determine the level of originality requirement according to different types of fanfic works.For the most common fanfic works,readers’ standard should be regarded as the judgment standard instead of experts’ standard.At the same time,the identification method of syllogism tort and the two-step approach are combined to alleviate the fuzzy boundary of thought expression,which is easy to make different judgments in the same case.Thirdly,it introduces the judgme nt elements of fair use in the United States.Under the current exhaustive listing of fair use situations,it is difficult for fan works to fall into the framework of fair use.The four-factor judgment standard is more specific than the three-step test in China,which can reduce the judicial injustice caused by the excessive discretion of judges.Finally,intellectual property sharing protocol is a new thing in the network era,which has good practical experience in the United States and Japan,and can solve the problem that it is difficult for fan works to obtain authorization from the original author.