1. What are the criteria for identifying copyright infringement
1. The plaintiff’s work Analysis
According to the provisions of our country's laws, the creation of copyright adopts the principle of automatic protection, that is, once the creation of the work is completed, the copyright is generated. Therefore, unlike the determination of other types of intellectual property infringement such as patents and trademarks, the determination of copyright infringement also involves the issue of the validity of rights. A work with valid copyright must meet the following conditions: it belongs to the scope of works protected by copyright law; it is original; and it can be copied in some tangible form. As long as any of the conditions are not met, the plaintiff's works are not protected by copyright law. Thus, the defendant certainly did not infringe the rights. If the plaintiff's work meets both of the above conditions, the work is protected by copyright law.
2. Analysis of the allegedly infringing works and the defendant’s use
Analysis of the allegedly infringing works The following two standards can be applied to the analysis: one is "contact", that is, the opportunity to come into contact with the previous work; the other is "substantial similarity", that is, the part that should be protected by copyright is substantially similar. Among them, the latter is the focus of identification. When determining whether the plaintiff's and defendant's works are "substantially similar", the copyright-protected parts of the plaintiff's work should be compared with the corresponding parts of the defendant's work to determine whether the two are substantially similar.
In my country's judicial practice, the People's Court has also had successful cases in determining whether there is substantial similarity between the works of the plaintiff and the defendant. For example, in the case of an infringement dispute over the book "The Second Half of the Last Emperor", the Xicheng District People's Court of Beijing determined that the defendant did not infringe the copyright by affirming the originality of the defendant's work, that is, denying the substantial similarity between the defendant's work and the plaintiff's work. If the defendant's behavior is the use of works, then the defendant's use method needs to be analyzed. Relevant intellectual property laws provide different meanings to "mode of use". For example, in the patent law, it refers to "implementation", that is, applying a patent to the industry, manufacturing the same product according to the instructions or using the same method; on the contrary, in the copyright law, it refers to "copying", that is, printing , photocopy, etc.Make one or more servings. When a certain object (such as a work of applied art or a design) is protected from different angles by patent law and copyright law, special attention should be paid to distinguishing between two different ways of use: "implementation" and "copying". constitute different types of infringement.
For "copying", the most common way of using works, according to the provisions of Article 52, Paragraph 2, of my country's Copyright Law, in accordance with engineering design, product The use of design drawings and their descriptions for construction and production of industrial products does not constitute "copying" within the meaning of the Copyright Law. It can be seen that in our country, reproducing a two-dimensional work in a three-dimensional form does not constitute infringement of the two-dimensional work.
2. How to determine compensation for copyright infringement
Compensation is protection The judicial interpretation of the Supreme People's Court provides detailed provisions on how to calculate the losses caused by infringement of copyright and copyright-related rights and interests:
(1) The actual loss of the right holder can be calculated based on the reduction in the distribution of copies caused by the infringement or the product of the sales volume of the infringing copies and the profit per unit of the right holder's issuance of the copies. If it is difficult to determine the reduction in distribution, it shall be determined based on the market sales of infringing copies. If the actual losses or illegal gains of the right holder cannot be determined, the people's court shall determine the amount of compensation based on the request of the parties or ex officio. When determining the amount of compensation, the people's court shall comprehensively consider the type of work, reasonable royalties, nature of the infringement, consequences and other circumstances.
(2) The reasonable expenses incurred by the right holder or its entrusted agent to investigate and collect evidence on the infringement, including attorney fees, are included in the scope of compensation.
Copyright infringement is common in reality, which not only causes damage to the rights holders, but also causes certain damage to the social and economic order. In the face of copyright infringement, we We need to respond rationally, and if necessary, we can also hire or consult a professional lawyer to help us solve the problem. The Legal Savior Network also provides online lawyer consultation services. If you have anything else that you don’t understand, you are welcome to consult this website.