关键词: 版权侵权认定, 过程, 实质相似, 测试法

Abstract:

Recognition standard of copyright infringement is determined by courts in case. The courts judge whether the defendant violate the exclusive rights of copyright owner according two main procedures. First， the plaintiff must allege and prove ownership of a valid copyright. Second，the plaintiff must prove that the defendant violated one of the exclusive rights of copyright owner. Recognition to whether the defendant violates the exclusive rights of copyright owner has two main elements. One is whether the defendant copied from the plaintiff’s work in fact. The other is whether the defendant copied enough of plaintiff’s protected expression to constitute infringement. The second judgment is substantial similarity analysis. In different circuit courts the methods of substantial similarity analysis are different in different stages with time changing， the development of technology，and the change of people’s opinion. The methods of substantial similarity analysis have Expert Testimony and Abstractions Test， Summary Judgment Test of the Ordinary Observer， the Total Concept and Feel Test（It is improved by Extrinsic/Intrinsic Test），the Test of the Works Intended Audience， the test of the more Discerning Ordinary Observer， and “Abstract-Filtration-Comparison”Test.