Research On The Judicial Status And Standard Optimization Of Substantive Similarity Elements Of Copyright Infringement Judgment

The substantive similarity rule in copyright infringement cases comes from the case law of the United States,which is gradually improved with the development of time and is used for reference by courts of other countries.After the introduction of this rule in China at the end of last century,it has been widely used in the judgment of copyright infringement cases.Our courts generally only need to prove that the defendant’s works and the substantial parts of the plaintiff’s works are consistent or similar,and copyright infringement can be recognized when the plaintiff’s works are first published and the defendant does not propose independent creation.However,our copyright law does not make such a rule into a culture.Therefore,the identification of copyright infringement cases in our country relies heavily on the subjective judgment of the judge.When judges decide whether copyright infringement is constituted,they often have inconsistent judgment methods for the same type of works.Therefore,it can be seen that the substantive similarity rule is the top priority of copyright infringement cases.This paper uses both macro and micro perspectives to study.First of all,the concept of the research object is clarified by differentiating and analyzing the concepts similar to the substantive similarity;Secondly,by using empirical research,comparative research and other methods to analyze the relevant basic theories of substantive similar elements in copyright infringement cases and cases in judicial practice,it is found that Chinese courts often have problems such as inconsistent judgment standards and confusing the judgment logic in the trial of copyright infringement cases;Finally,on the basis of practical problems,this paper puts forward targeted suggestions on the optimization of substantive similarity criteria.In the first chapter of this paper,by referring to relevant academic papers and searching relevant judicial practice cases,the author finds that there are few and relatively independent results of substantive similar studies in Chinese theoretical circles,and there is a lack of results of systematic research on this rule.Most experts and scholars only discuss the substantive similarity within the category of a certain type of works,and lack a rule study covering all types of works.In the second chapter,the author expounds the concept of substantive similarity,and makes a comparative analysis with other similar concepts "demonstrative similarity" and "significant similarity" to further define substantive similarity.Next,the author interprets the relevance theory of the substantive similarity rules,that is,the judgment rules of the substantive similarity elements cannot be separated from the "dichotomy of thought expression" and the original theory.The core of copyright law is to extend the protection of expression rather than thought.The original theory and the substantive similarity judgment rule are the concrete embodiment of the "dichotomy of thought expression",and only the expression is necessary for the comparative judgment of substantive similarity.Therefore,the judicial application of the substantive similarity elements of works requires the judge to fully understand the above theories and their relevance.The third chapter of this paper mainly introduces the two standards of "whole concept and sense method" and "abstract separation method" which are used to judge material similarity overseas,as well as the "whole sense method" and "three-step test method" which are derived from foreign methods in China.The article points out that the two domestic standards are actually the results of the foreign standards of China,is combined with the characteristics of domestic judges after the conclusion.The fourth chapter mainly introduces the current situation of judicial application of the standard of material similarity requirements.In this part,the author searches and selects 216 judgments involving material similarity judgment through key words from the Internet of judgment documents,and discusses the judicial application status of material similarity judgment criteria according to different types of works.In specific judicial practice,judges often have inconsistent judgment methods for the same type of work and replace value judgment with fact review such as expert opinions and appraisal reports when deciding whether copyright infringement is constituted.Even more,judges will reach completely opposite judgment results in the same case due to different judgment methods.In Chapter five,based on the problems in the real judgment,this paper optimizes the criteria for the material similarity elements in the judgment of copyright infringement,including the combination of abstract separation method and overall perception method,and then combines different types of works to give more detailed material similarity judgment criteria.In addition,it also needs to determine the rational use of the fictional subject of judgment and the wrong contrast method.In order to realize the standardization and unification of the rule judgment standard.The last chapter draws the research conclusion,which points out that in the judgment of material similarity elements,we should first use the abstract observation method to determine the elements protected by copyright law in the plaintiff’s works,and examine whether the defendant’s works use the original expression of the plaintiff’s works.Secondly,the holistic view method mainly investigates whether such use behavior constitutes improper misappropriation and the extent of infringement on the plaintiff’s works from an overall perspective,and then investigates with different focuses according to different types of works,so as to form a fixed and unified judgment standard of substantive similarity.