1. The concept, characteristics, manifestations and characterization of online copyright infringement
(1) The concept of online copyright infringement
Online copyright is a new type of copyright in the context of the digital age, which emerged with the rise of digital publishing. Online copyright is also copyright, which refers to the rights that authors of intellectual works such as literature, music, movies, scientific works, software, pictures, designs, etc. have over their works on the Internet. Regarding Internet infringement, some scholars believe that it is the extension of infringement to the Internet and the network environment, resulting in Internet infringement. Some people also believe that network infringement refers to acts that infringe on the personal and property rights of others in the network environment, but does not include damage to network transmission equipment or facilities in real society. As a new type of infringement case, it is different from traditional infringement. Behavior. The author believes that online infringement refers to the behavior in which infringers use network information technology to infringe on the civil rights and interests of the country, collectives or individuals protected by laws and regulations in the Internet environment.
(2) Characteristics of online copyright infringement
1. Infringement is difficult to identify. Determining infringement must rely on evidence, and the digital information existing on the Internet is composed of binary discrete signals, which are not continuous. It is difficult to detect after modification or deletion, and it is also difficult to collect evidence. Therefore, information on the Internet must be used as evidence for identification. There are certain difficulties with infringement.
2. The subject of the infringement is difficult to determine. Ordinary netizens can choose their favorite name on the website to be their own netizen, but their true identity is unknown. Some users can also "hide" anonymously on the Internet, and it is impossible to find out the true identity of this user.
3. The consequences of infringement spread quickly. The global and real-time nature of the Internet makes the dissemination of online information more convenient, faster and more extensive. This also makes the consequences of infringement spread everywhere in a short period of time, but the rights holder cannot stop it in time.
4. The jurisdiction of the case is not easy to determine. Jurisdiction over infringement usually applies to the law of the place where the defendant is located or theFor the law of the land. However, the Internet is a global special space. The places where the same infringement occurs are often far away or even beyond national borders. However, the network cases we have to solve are complicated and numerous, which undoubtedly poses difficult problems to our current jurisdiction regulations.
(3) Manifestations of online copyright infringement
1. Copying other people’s works without permission Digitized and published online. This kind of behavior is mainly to digitize unfinished or completed works and publish them to the public on the Internet without the permission of the right holder, which infringes the right holder's right to network information dissemination and publication. This type of behavior is more common on some free download websites for pictures, e-books, movies, etc.
2. Illegal reprinting. This kind of behavior includes two situations: first, reposting a work published by others on the Internet and stating that it cannot be reprinted to other networks; second, although the right holder has not explicitly stated whether his work can be reprinted, the perpetrator did not list it when reprinting. The identity information of the right holder was clearly stated and the fee was not paid to the right holder. This type of behavior is more common in open online communication communities or portals such as forums and Weibo.
3. Infringement of web design rights. This kind of behavior includes two methods: one is to directly copy the source code of other people's web pages or make partial modifications based on this code; the other is to steal the design of other people's web pages or make partial modifications on this basis. The perpetrators of this type of behavior are mostly web designers.
4. Infringement of online trademark rights. Internet trademarks are special trademarks where the right owner digitizes or redesigns their trademarks to suit the Internet. Such trademarks are usually more complex than ordinary trademarks and may include text, pictures, sounds, animations and other elements. Infringement is often manifested in the use of similar designs. Confusing and difficult to identify and judge.
5. Guidelines for illegal links. This kind of behavior includes two basic forms: one is the illegal connection guide of search engines. Some search websites directly connect other people’s websites to their own search libraries as part of their own; the other is ordinary websites that hide other people’s website addresses in their own website pages. , users do not know that they are browsing information from other websites when browsing related information.
6. Infringement of network domain name rights. There are two forms of this kind of behavior: one is the behavior of "malicious registration". When other institutions and companies have not registered domain names according to their trademarks, names, etc., they maliciously register them based on such information, and then sell them to these institutions and companies at high prices. Enterprises; the second is to use domain names similar to other website domain names to mislead users, increase the number of clicks on their own websites or even conduct fraudulent activities.
2. Difficulties in identifying online copyright infringements in China
(1) Online copyright infringements The issue of the constituent elements of infringement
The current main point of view on the issue of the constituent elements of infringement is that the constituent elements of infringement are the presence or absence of infringement, the result of damage, and the presence or absence of the first two items The causal relationship and the subjective fault of the offender are the so-called four elements theory. Only behaviors that meet the four elements at the same time can be called torts. In addition, some scholars believe that the reasons for illegal blocking should also be considered when identifying infringements, that is, If there is an illegal reason for blocking, then the act is not an infringement. The author believes that such division of constituent elements and consideration of reasons for rejection is to treat the identification of infringement and the identification of tort liability as equivalent. The determination of infringement and the determination of tort liability have a common goal, that is, to finally complete the division of rights and obligations and restore justice, but they are different. The determination of infringement is to determine the illegality of the behavior of the subject, and for the damage Consideration of the result, whether there is a causal relationship, the subjective fault of the infringer, and the reasons for illegal obstruction all belong to the determination of tort liability. The determination of infringement is the prerequisite for the determination of tort liability, and the determination of tort liability is the next step in the determination of tort. They are two different stages.
(2) The issue of illegal behavior
The issue of illegal behavior has two aspects: The first is that the behavior does exist, that is, the issue of determining the facts of the behavior; the second is the issue of the illegality of the behavior itself, that is, the issue of determining that the behavior infringes upon the objects clearly protected by the law. Once the object of online copyright protection is clarified, all inappropriate factual behaviors directed at this object can be determined as infringement. However, there are currently difficulties in both aspects.
Determining behavioral facts mainly involves determining the behavioral subjects and behavioral patterns. The difficulty faced in this part comes from the particularity of network information, which is becoming more and more special. In order to determine the difficulty of behavioral facts, this part will be discussed in detail in the next part of the article. In addition, my country's current legislation does not clearly define the scope of online copyright protection and the method of obtaining online copyright. This has resulted in a lack of protection for rights holders' creative achievements and made it more difficult to identify online copyright infringements.
(3) The particularity of network information increases the difficulty of identification
Determining infringement requires Relying on evidence, identifying online infringements mainly relies on network information. However, the digital storage and easy modification of network information pose challenges to traditional evidence certification rules and standards.All have raised new challenges, which has made it more difficult for judges to determine.
1. Internet information has had a great impact on rumor rules
With the increasingly accelerated With the process of digitization, more and more network information has become evidence and entered into lawsuits. The producers or insiders of these network information will not appear in court to testify, and a lot of network information automatically generated by the system has also become evidence, such as consumption records, company financial statements, and system-generated logs, which should all be included in the evidence. beyond the scope of hearsay evidence, their admissibility requires more testing.
2. The standard for admissibility of network information when determining infringement is unclear
Determining infringement At this time, the admissibility of evidence is crucial, so the standards for the admissibility of network information must be clarified. At present, our country does not have clear standards for the legality and authenticity of network information, and the particularity of network information also makes it difficult to It requires a large amount of professional skills or specialized personnel, so in many cases, judges are usually unwilling to use online information when there are no clear standards and certification is difficult, which makes it more difficult to identify online copyright infringements.
The above is the relevant content collected by the Legal Savior Network on the "Determination Standards for Internet Copyright Infringement". You can learn about relevant knowledge by reading the above content. Of course, if readers suspect that their online copyright has been infringed and need legal help, you are welcome to consult the Legal Savior Network.
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