Controversy frequently occurs. Is the novel ＂melting stalks＂ a re-creation or plagiarism？

　　□ Rule of Law Daily reporter Sun Tianjiao

　　□ rule of law daily intern Chen Lier

　　Not long ago, the dispute between Shen Nanqiao, a novelist, and Jiuyuexi over plagiarism aroused social concern. Shen Nanqiao posted on the social platform that in Jiuyuexi’s novel "A City Waiting for You", the character setting, personality and experience of the "fake brother and sister" are similar to those in his work "I’m only afraid that I love you", and a "palette" (a table comparing the plagiarized text with the original text) is listed. Jiuyuexi quickly counterattacked, listing "counter-offer" (refutation of "palette"), saying that there was no plagiarism, and "legal weapons are welcome to properly protect rights".

　　In recent years, the word "melting stalk" has been frequently packaged with plagiarism, which has been called "more covert plagiarism" by many online novel writers and readers. There is no official definition of "melting stalk", which is usually considered that the other party has not copied the original text word for word, but the core plot of the story development is very similar to the character setting.

　　In an interview with the reporter of the Rule of Law Daily, many experts believe that "melting stalks" is not completely equivalent to plagiarism in the sense of copyright law, but there is a great possibility of infringing copyright, and some of them are tantamount to "advanced plagiarism". In practice, it is difficult to prove and defend the rights of controversial works. We should be wary of beautifying "melting stalks" as "reference" and "tribute", so that defenders will be discouraged, plagiarists will escape punishment and the creative enthusiasm of the original creators will be dampened.

　　Controversy over stem melting frequently occurs.

　　Whether plagiarism is difficult to judge.

　　At the beginning of this year, Ms. Tian of Changchun City, Jilin Province found that her work published on the online platform was "melted", and the name, cover and theme of the other work were highly similar to the original article. "It can be said that it was directly taken down."

　　What makes Ms. Tian even more shocked is that the people who "melt" her works are her fans and often interact with themselves in the comment area. Ms. Tian then confided in the other party privately. At first, the other party denied the "melting stalk", but admitted it after seeing the comparison of the two works made by Ms. Tian.

　　In the end, the result of the negotiation between the two parties was that the other party publicly apologized to Ms. Tian on the publishing platform and put the apology statement on the top. Seeing the apology statement of the other party, Ms. Tian wanted to further defend her rights, but she felt that the work was "broken" and not simply copied.

　　According to the reporter’s investigation, there are frequent disputes about "melting stalks" in current novels, especially online novels.

　　Previously, the work "Fairy Tale Sequel" by the author of a web platform was accused by netizens of "melting stalks" and many other works, including the design of male and female hosts and the key plot points. In the end, Muque tweeted an apology to the author, Ear Dong Rabbit, saying that she had "borrowed too much" in her description. At present, the online platform shows that "Fairy Tale Sequel" is illegal.

　　The reporter searched on major online platforms with the word "melting stalks" and found that many online writers posted that their works were "melting stalks". For the behavior of "melting stalks", the vast majority of authors scoff. One author with millions of fans once wrote an article bluntly: "There are so many core stalks in a text, which person who writes with real skills is not clear? I resolutely resist the situation of melting stalks and copying stalks. I also sincerely hope that all my readers will resist this kind of behavior. This is the protection of the original author. Otherwise originality will die. "

　　For the behavior of "melting stalks", many readers bluntly said that it was "completely unacceptable". Huang Shushu (pseudonym) of Zhanjiang, Guangdong Province said: "Compared with plagiarism, ‘ Melt stalks ’ Behavior is more unbearable to some extent. Because word-for-word plagiarism can directly prove it, but it is ‘ Melt stalks ’ It is often difficult for authors to prove themselves, and some ‘ Melt stalks ’ Some people still call it ‘ Learn from ’ Or ‘ Coincidence ’ 。”

　　However, some readers said that they don’t mind whether the novel is "melting". Silent (pseudonym), who went to college in Haidian, Beijing, thinks that "melting stalks" is different from plagiarism, and plagiarism is an imitation of "a large area", while "melting stalks" is only a reference for a small part of the plot. "If ‘ Melt stalks ’ Part is not the core of the work, and it will not affect my perception of the novel. "

　　Xu Yaoming, executive vice president of the Network Literature Research Institute of Central South University, said that "melting stalks" is not a legal term, but an online buzzword. It is generally believed that "melting stalks" refers to the act of collecting the creativity of all parties in the process of online literature creation and borrowing other people’s intellectual achievements in the aspects of character setting and story routine. "Melting stalks" is not completely equivalent to plagiarism in the sense of copyright law, but in practice, "melting stalks" does have a great possibility of infringing copyright.

　　Wang Zhengzhi, a partner of Gawain Law Firm and director of all china lawyers association Intellectual Property Committee, told the reporter that from a legal point of view, "melting stalks" and plagiarism cannot be equated. The word "plagiarism" corresponds to the act of "plagiarizing other people’s works" in the context of copyright law, and the plagiarist should bear legal responsibility. The word "melting stem" is not spoken in French illegally, and the boundary is unknown. The object and degree of "melting stem" may affect the legal evaluation of "melting stem" behavior. "Not all ‘ Melt stalks ’ Acts constitute infringement in copyright law. "

　　During the interview, some network writers said that it is precisely because of the above characteristics of "melting stalks" that "there are hardships".

　　Ms. Yuan, an online writer from Gansu, posted on the social platform that her article was "broken by two big brothers for many times", but she knew that if she worked hard to make a "palette", there was a high probability that the other party would not be sanctioned, and it would "attract other plagiarists to step on it". She told reporters that the writers who were "melted", despite their anger, most of them would not defend their rights and spit on social accounts at most. "Because there is no way ‘ Beat to death ’ The other side, the official also has no ‘ Melt stalks ’ A clear definition, too true, may bring trouble to yourself. "

　　According to the reporter’s investigation, when the author or reader puts forward that a work is suspected of "melting stalks", he usually sends out a "palette" between the original work and the plagiarized work, including the specific release time of the work, the specific scene description in the article, the development context of the story, and the personality setting of the characters in the novel, and compares the similarities or even similarities between the two works one by one.

　　However, many times the "palette" is not convincing enough. Ms. Chen, a citizen of Beijing, has been reading online novels for nearly 10 years, and has also witnessed many online novel writers or readers denouncing them in the form of "palette". She said that the problem of "melting stalks" involves the setting of characters, the background of the story, the trend of the plot, etc. It is difficult to present an overview in one or two sentences. "Some authors ‘ Hammer ’ Others, mixed with a lot of their own opinions and emotions, hang people ‘ Melt stalks ’ Examples of the final rollover are also everywhere. "

　　Strict conditions for infringement

　　It is difficult to protect rights by melting stalks

　　Judging from the investigation, the dispute of "melting stalks" often stays in the online battle between the two sides, and most of them go away. Only a few authors choose to protect their rights through law.

　　In March, 2022, network writer Zuzhan issued a document saying that his case of suing another network writer, Jiu Yuexi’s Xiao Nanfeng, for infringing the copyright of his work Hug You Over Time had been filed. This case is also the first one to go to the litigation stage after the establishment of the anti-plagiarism fund initiated by writer Zhuang Yu.

　　According to the official response of the Anti-Plagiarism Fund, most of the elements in Xiao Nanfeng, including the story background, structure and narrative context, come from Hug You Over Time, and even the characters can correspond to each other one by one, but none of the sentences in the two works are completely coincident. "The descriptions and dialogues of the sentences in the closest situation are also slightly different."

　　According to lawyer Yue Shenshan, a member of the Anti-Plagiarism Fund Management Committee, after four months, the Anti-Plagiarism Fund invited experts and college student volunteers to read and compare the two works, and decided to give assistance on the basis of summarizing the reading reports issued by the volunteers who participated in the reading comparison. At present, the case has been heard twice.

　　What is the difficulty of judicial rights protection in the dispute of "melting stalks"?

　　Wang Zhengzhi believes that, on the one hand, novels accused of "melting stalks" are often popular works, and defenders will face great public pressure to resort to legal channels. On the other hand, if we resort to the law, the judicial determination of the infringement of literary works is still unclear, and there are great differences between cases; Even if the case is won, the amount of compensation is often out of proportion to the time and energy invested.

　　In Xu Yaoming’s view, in addition to the high litigation cost, the difficulty in determining the nature of infringement has greatly lengthened the trial cycle of such "advanced plagiarism" cases, and at the same time tested the professional standards of plaintiff lawyers and judges.

　　According to public information, in 2019, the Chaoyang District People’s Court of Beijing made a judgment on the plagiarism case of 12 writers v. Jinxiu Weiyang. The first instance found that the plagiarism was established, and ordered the defendant Zhou Jing (pen name Qin Jian) to immediately stop the copying, distribution and online communication of the novel Jinxiu Weiyang from the effective date of the judgment, and compensate the plaintiff for economic losses. There are many places in the novel "Splendid Weiyang" that directly copy the original texts of other novels, and some of the contents are accused of "melting stalks", but the expression is "cleverly" re-created. After the dust settled in this case, many netizens sighed with emotion: "‘ Melt stalks ’ Finally, I have the hope of identifying plagiarism. "

　　Xie Yujia, a judge of the Intellectual Property Court of Chaoyang Court, said that when the specific expression of the originality of the right work and the accused work is substantially similar, the court may consider that the accused work constitutes infringement. First of all, we need to confirm the samples for comparison, that is, the specific expression parts of the right works and the accused works. If the relationship between characters and the setting of specific plots are rich enough, they can be regarded as concrete expressions. "Copyright does not protect ideas. Only when the concrete expressions are substantially similar can it be regarded as copyright infringement."

　　Xie Yujia said that the difficulty in identifying the infringement of "Ronggeng" works lies in the distinction between adaptation and reasonable reference. Adaptation, that is, on the basis of the original work, produces a new deductive work through its own creative activities. Although the author of the adapted work has also paid creative labor, it is an infringement without the permission of the original author. Drawing lessons may refer to the act of simply using the ideas of the right works instead of expressing them, or it may refer to rational use.

　　"Ideological reference does not involve the original achievements of works that infringe rights, and it is usually not considered as copyright infringement. However, whether the specific expression of reference constitutes infringement depends on the proportion of reference content. The consideration of this ratio should not only be considered quantitatively, but also from the perspective of the importance of learning from the content and the originality of expression, that is, the qualitative dimension. The evaluation criteria need to be analyzed in combination with specific cases. " Xie Yujia said.

　　Take relevant cases as guidance.

　　Properly protect original works

　　According to Xu Yaoming, in recent years, the number of cases involving "advanced plagiarism" has increased. In June this year, the Network Literature Research Institute of Central South University and Hubei Copyright Protection Association published "Ten Typical Judicial Cases of Copyright Protection of Online Literature in China in 2022", which included two cases involving novel plagiarism.

　　In the case of copyright infringement between Zhu Ruyue and a publishing company limited, Luo Mou and a publishing media group limited, Zhu Ruyue believed that the first to ninth chapters in The Legend of Hailanzhu were the creation of the novel "Walking Alone in the World", and plagiarized in 17 main plots, 10 general plots and many sentences, so he sued the court. After trial, the court held that judging from the similar main plot, general plot and sentence length of the two works, it is not within reasonable limits to combine the overall expression ratio of the works. Luo and a publishing company were sentenced to stop publishing infringing books, apologize and compensate economic losses (including reasonable expenses for rights protection) of 70,000 yuan.

　　The reporter combed the public information and found that the author accused of "melting stalks" often argued that it did not constitute plagiarism on the grounds that "similar content and plot belong to the public domain material category or customary expression".

　　In this regard, Xie Yujia explained with cases that in literary works, it usually involves the identification of "specific situation", "limited expression" and "public domain material". When considering whether the works and contents formed on the basis of using specific situations, limited expressions and public domain materials are protected by copyright law, we should focus on judging whether the author has added original wisdom expressions to give original meaning to related achievements. If the content of the relevant work is enough to be regarded as a concrete expression, the burden of proof lies with the defendant as to whether it belongs to a specific situation or not.

　　Wang Zhengzhi believes that for the new phenomenon in the field of literary creation, the past methods of infringement judgment are facing many difficulties in application, and the court urgently needs to explore and form appropriate judgment rules and methods to accurately identify the behavior of "melting stalks" in specific circumstances, which can neither make the author unreasonably monopolize the public domain elements, nor make the word "melting stalks" an excuse for plagiarists to evade legal responsibility, and make legal weapons a reliable way for original authors to protect their rights, so that plagiarists dare not use "melting stalks" as an excuse.

　　In Xu Yaoming’s view, the existence of the dispute of "melting stalks" is in the final analysis the existence of plagiarism. Plagiarism in online literature should be tackled from the source, that is, the original platform of online literature should earnestly shoulder the responsibility, strengthen the examination of online novels, and provide a harmonious and healthy atmosphere for writers and readers at the platform level. With the deep application of artificial intelligence, big data and algorithms in the field of copyright protection, it is expected to strengthen source governance through technical means in the future. At the same time, the state and relevant departments should do a good job in legislative norms and guidance, and take measures to ban the bad network authors who have repeatedly involved plagiarism.

　　Yue Shenshan believes that there should be a dividing line between "melting stalks" and plagiarism, and plagiarism can be recognized beyond this line. However, due to the particularity of literary and artistic creation and the lag of law, there is no such clear distinction standard in the field of copyright infringement. The anti-plagiarism special fund also hopes to popularize copyright-related knowledge and advocate public respect for copyright and intellectual copyright by helping and dismantling some typical cases.

　　Xie Yujia told reporters that in recent years, the courts have strictly implemented measures related to intellectual property protection, increased compensation for infringement damages, actively studied and handled new types of cases, and effectively protected the legitimate rights and interests of copyright owners. "Under the new industrial changes and the rapid development of the digital economy, new problems in the field of copyright emerge one after another. We will continue to improve the trial level of copyright disputes through the summary of case adjudication experience. "