实体化文学观影响下著作权司法实践的三重混淆

Three Confusions in the Practice of Copyright Influenced by the Substance Concept of Literature

现行著作权司法实践在判断涉案作品的实质性相似时往往采用"三段论侵权认定法",这种方法总是将文学作品细分成各种要素。也就是说,文学被对象化、实体化了。然而,这样一种实质性判断却有失准确,因为实体论文学观影响下的著作权司法实践存在三重混淆:将有机的文学作品与无机的要素组合相混淆、将文学世界与文学媒介相混淆、将意义的生成与现成的意义相混淆。

Three Steps Test is often used in the current practice of copyright when we judge the similarity in substantiality of the two works and it always break down the literature into various elements. In other words, literatures have been considered as objects and substances. Influenced by the Substance Concept of literature, however, the practice of copyright is not accurate because it easily meets with three confusions, such as, the organic literature is misunderstood as the inorganic factor combination; literary world and the medium of literature is confused; and the difference between subsistent meaning and generative meaning is ignored.