Is it a coincidence?
Where is the border
——Looking at Plagiarism from the Copyright Law
Author: reporter Jin Hao
【Dharma Eye View】
“Plaagiers should not be role models!” In December 2020, nearly 300 well-known screenwriters, directors, writers, etc. issued a joint open letter or proposal, pointing out that the screenwriters and directors (Yu Zheng, Guo Jingming) who have frequent plagiarism are on and off the show The topic of hype, in order to chase clicks and ratings, appealed to film and television practitioners to respect self-discipline, respect originality, refuse plagiarism, plagiarism, and fusion, which triggered a discussion about respecting copyright and resisting plagiarism.
At the end of December 2020, Guo Jingming and Yu Zheng made public apologies to Zhuang Yu and Qiong Yao for their previous plagiarism. Zhuang Yu and Qiong Yao respectively accepted the apologies and put forward related initiatives.
On February 5, 2021, the incident of "nearly 300 film and television practitioners and online writers jointly resisting plagiarism" was selected as one of the top ten copyright events in China in 2020 issued by the National Copyright Administration.
The plagiarism incident many years ago has not yet settled, and people can't help but feel that the society's awareness of respecting copyright and respecting creation has increased significantly. However, plagiarism incidents still occur frequently, and they have repeatedly caused public concern. Is it a deliberate touch of porcelain or an accidental coincidence? It is urgent to lift the veil of the plagiarism incident and determine the points and stop the dispute according to the law.
1. "The copyright law only protects expression, not ideas"
Case: In May 2006, the Beijing Higher People’s Court made a final judgment and determined that Guo Jingming’s "How Many Flowers Fall in Dreams" was copied from Zhuang Yu’s "Circle Inside and Outside", and confirmed that the book has 12 main plots and "Circle Inside Circle". "Outside" is similar. There are 57 similarities in general plots and sentences. Guo Jingming and the publishing house in question are judged to compensate Zhuang Yu for economic losses of 200,000 yuan and mental damages of 10,000 yuan, and Guo Jingming is required to apologize publicly or directly publish the content of the judgment in In the newspaper.
Makeovers, dislocation of characters, reverse order... In this case, Zhuang Yu claimed that Guo Jingming had plagiarized the idea, story clues, part of the plot, language style, etc. of his book "Circle Inside Circle Outside", and even copied fragments of the book.
Such blatant plagiarism has caught the eye of the public. Then, how does the Chinese law regulate "plagiarism"?
It is understood that the Copyright Law promulgated in 1990 stipulates that plagiarism or plagiarism of others’ works is a tort.
This is the earliest direct use of the term "plagiarism" in the legal text of the Copyright Law.
In 1999, the "Response of the Copyright Management Department of the National Copyright Administration to the Qingdao Copyright Administration on How to Identify Plagiarism" pointed out: "The term "plagiarism and plagiarism" in the Copyright Law is the same concept, which refers to stealing other people's works or fragments of works for yourself. Yes." When the Copyright Law was revised in 2001, the term "plagiarism" was deleted.
Article 52 of the current Copyright Law stipulates that “if the following infringements are committed, they shall bear civil liabilities such as stopping the infringement, eliminating the impact, making an apology, and compensating for losses according to the circumstances”, including “plagiarism of others’ works”.
"In practice, plagiarism expressed by people generally has a wider scope than plagiarism or plagiarism in the sense of copyright law." Wan Yong, director of the Intellectual Property Law Teaching and Research Office of Renmin University of China Law School, pointed out that sometimes someone just uses someone else’s "Thoughts" are considered plagiarism in daily life, but they do not constitute plagiarism in the sense of copyright law.
This is because the copyright law only protects expression, not thought. This is the principle of the dichotomy of thought and expression.
Wan Yong said that thought generally refers to creativity, and expression generally refers to the final form of symbols such as words, colors, and lines.
The reason why the copyright law adopts the above principles is mainly because the protection of ideas will limit the creative space of later authors and hinder the spread of culture.
In literary works, the distinction between thought and expression is more complicated.
The expression of literary works is not only literal expression, but also includes the content of the story expressed in words, but the setting of characters and their mutual relationships, and the plot composed of the occurrence, development and sequence of specific events, are only specific to a certain extent. The degree reflects the author’s unique choices, judgments, and trade-offs that can become the “expression” protected by the copyright law.
"From the perspective of the form of plagiarism, there are acts of copying other people’s works intact or basically intact, generally called low-level plagiarism; there are also acts of stealing others’ original copyrighted elements as their own after reshaping. It is generally called advanced plagiarism.” Wan Yong pointed out.
In practice, plagiarism may infringe on the rights of different works according to different manifestations.
Generally, low-level plagiarism infringes the right of reproduction, and high-level plagiarism infringes the right of adaptation.
Depending on the type of work and the form of dissemination, it may infringe on property rights such as filming rights, broadcasting rights, and information network dissemination rights, as well as personal rights such as authorship rights.
2. The copycat style highlights the weak awareness of property rights among Internet practitioners
Case: On February 2, Netease Cloud Music issued a post saying that Kugou Music has established a "cottage office", and there is pixel-level plagiarism: After NetEase Cloud Music launched the "Listen Together" and "Yunbei Push Songs" functions, Kugou Music went online" "Follow" and "Music Push" functions, and the page style and design of Kugou Music in the above functions are similar to those of NetEase Cloud Music. Immediately afterwards, Kugou Music published multiple patent documents to fight back, and NetEase Cloud Music once again posted angrily.
In cyberspace, you can often find that many websites and client-side functions and interface designs are very similar, and a copycat wind often blows.
Zhao Ming, a lawyer at Beijing Zhongtong Law Firm, pointed out in an interview earlier that the function of mobile phone application software belongs to the product function design of computer software, and essentially belongs to the designer's design concept or thought.
According to Article 6 of the "Computer Software Protection Regulations", "The protection of software copyright does not extend to the ideas, processing, operating methods, or mathematical concepts used in the development of software", the copyright law does not protect product functional design.
"The copyright law mainly protects the expression of literary and artistic works. If certain functions and designs meet the protection requirements of the Patent Law, they can be protected as invention patents, utility model patents or design patents. Web pages and client icons can be used as art The work is protected.” Wan Yong pointed out.
"Generally speaking, creativity belongs to the category of'thoughts' in the copyright law. Of course, if the content of the creativity is very detailed, it may also belong to expression and should be protected." Wan Yong said that to protect creativity and stop plagiarism, in addition to further improving knowledge In addition to the level of legalization of property rights protection, it is also necessary to promote the concept of "protecting intellectual property rights is to protect innovation" to form an intellectual property cultural atmosphere that respects knowledge, advocates innovation, and is honest and law-abiding.
"The Internet economy has the characteristics of'eyeball effect' and'flow effect'. The prevalence of following the trend and the phenomenon of copycats highlight the weak awareness of property rights of some network service practitioners under the Internet economy model, and the order of competition urgently needs to be regulated." Gao Fei, a judge of Dongcheng District People's Court, said.
Gao Fei pointed out that competitors in the same industry should conduct adequate legal risk assessments, refrain from malicious clinging, find suitable technology development strategies, and remain invincible in the competition through innovation in core technologies and a better user experience.
In addition, industry self-discipline should be further strengthened, the formation of industry rules should be promoted, and a fair and orderly industry competition order should be established.
3. Short video copyright protection should meet the originality requirements of the work
Case: On January 24, Fang Qi, a "big V" short video blogger with tens of millions of fans, accused another blogger of "similarities" with multiple videos. Fang Qi compared the similarities in the topics, copywriting, and scripts of the two one by one, and posted his own creative timeline, saying that the other party's video was similar to his own in terms of similarity, frequency, and time span. Reasonable range. The blogger accused of plagiarism responded that the two short videos "do not have any plagiarism reference", and the individual sentences of some videos are indeed similar.
At present, the creation of short videos is in the "window".
At the same time, short video plagiarism, misappropriation and other infringements are frequent.
According to the "2020 China Online Short Video Copyright Monitoring Report", from January 2019 to October 2020, the 12426 Copyright Monitoring Center monitored more than 10 million short videos, and a total of 30,095,000 short videos were monitored as suspected infringements.
Among them, the infringement rate of exclusive original authors is as high as 92.9%.
"Short videos have the characteristics of low creation threshold, short recording time, clear themes, strong sociality and interaction, and ease of dissemination, which will help the public's diversified expression and cultural prosperity." Gao Fei pointed out that short videos must obtain copyright. Protection should meet the requirements of the copyright law on works, and the key to the identification of works lies in the judgment of originality: whether it is done independently by the author; whether it is "creative", that is, the work should reflect the intellectual creativity of the author.
"Generally speaking, it can reflect the individual choice, choice, arrangement and design of the producer, and it can be regarded as creative."
In judicial practice, the judgment of copyright infringement often follows the principle of "possibility of contact + substantial similarity".
Gao Fei explained that "possibility of contact" refers to the possibility that the author of the alleged infringing work had contacted the copyrighted work of the plaintiff.
Generally speaking, the plaintiff needs to prove that his work is in a state that can be known or obtained by others, for example, it has been published, or although it has not been published, the defendant does have access to the work; “substantial similarity” refers to the alleged infringement The substantive similarity between the work and the original work is mainly to judge whether the original expression part of the later work and the previous work, such as music, singing, dance moves, animation, text, etc., are similar in overall composition.
Gao Fei emphasized that, according to the "principle of the dichotomy of thought and expression," the copyright law protects original expressions in works, not abstract ideas themselves.
If people are not allowed to freely use other people's ideas, it may cause creation to dry up and hinder the spread of culture.
Therefore, the idea or theme that advocates the creation of a short video is plagiarized, and it is generally difficult to get support.
"Of course, unauthorised copying of other people's works, substantive similarities with other people's works, or unauthorized adaptation of other people's works may result in infringement." Gao Fei said.
"On the issue of plagiarism and manuscript washing, some cases are relatively clear, and some cases are relatively vague. It is difficult to reach a consensus on whether it is a reference or plagiarism." According to the person in charge of a relevant department of a short video platform, the platform has set a bottom-line level for this. Infringement rules and content rules at the guiding level.
For some works that are not highly original, but may not constitute infringement, restrict the recommendation mechanism to encourage originality.
(Our reporter Jin Hao)
(Academic guidance for this edition: Wan Yong, Director of the Intellectual Property Law Teaching and Research Office, Renmin University of China Law School)