What are the principles for determining copyright infringement
1. Principles for identification of copyright infringement
In judicial practice, the commonly used principles for identifying copyright infringement are:
1. The dichotomy of thought and expression
Excludes the idea of the work from the scope of protection of copyright law. This is a basic requirement of copyright law principles. Article 9, paragraph 2, of the Berne Convention clearly stipulates that copyright protection extends to expressions, but not to ideas, processes, methods of operation or digital concepts themselves. Article 5 of the draft amendment to the Copyright Law (hereinafter referred to as the draft) submitted by the my country Copyright Office on January 8, 1998 also added a clause that copyright law protects expressions but does not protect ideas, concepts, discoveries, principles, methods, manifestations and processes.
Thoughts and expressions can be clearly distinguished in general works , but in computer software works, its boundaries are not clear.
In addition, even if it is an expression of thought, but the expression belongs to the public domain, for example, if it is a unique expression, then the expression It is also not within the scope of protection.
2. Contact with The principle of similarity
in separating ideas and expressions, public domain and After the private rights field, if two works are the same or similar, you can judge whether plagiarism constitutes plagiarism by whether the authors of the two works have contact or there are traces of contact in the works.
If the right holder’s work is the same or similar to the defendant’s, and the defendant cannot provide its creative process to prove that If the author imitates but creates independently, the infringement is established. It can be seen that the burden of proof here has been reversed, that is, the author of the accused work must prove that he has not come into contact with the plaintiff's work, otherwise it can be presumed that there is contact.
In judging whether two works are the same or similar, there is the so-called substantive part (substantial part), that is, the accused work imitates the substantive part of the right holder's work. However, what is the substantive part of the work and how to judge the substantive part is still a matter of opinion. This needs further exploration in judicial practice.
2. Requirements for copyright infringement
From the perspective of the constituent elements of infringement, it should be analyzed from two aspects: "fault" and "no fault". When applying fault In the case of the principle of induction, its composition must simultaneously meet the four elements of illegality of the act: (injury), fact of damage, causal relationship and fault. As for torts determined based on the principle of no-fault liability, since it does not consider whether a person has Fault, therefore fault is no longer a constitutive element of this type of tort.
1. Illegality. The act that causes the fact of damage must be of illegal nature, and the actor shall be liable for compensation. Otherwise, even if there is fact of damage, the actor cannot be held liable for compensation. No matter whether the activities performed by the actor are Whether it infringes upon the interests of the copyright owner or whether the activities carried out pose a major threat to the interests of the copyright and will inevitably harm the interests of the copyright owner in the future, both constitute copyright infringement.
2. Damage fact. It usually refers toThe behavior carried out by the infringer has objectively caused harm to the injured party. If the infringer's behavior causes damage to the copyright owner and there is no statutory reason for liability, the infringer shall bear legal liability. However, If an infringer commits infringement without causing actual damage to the copyright owner, should he be held liable for infringement? If someone illegally copies a large amount of his work without the permission of the copyright owner, but does not branch out, is this an infringement of copyright? Or if someone Publishers publish without the author's permission but pay the author remuneration. I think these are infringements because they do not have the author's permission and no legal permission. The infringer has exercised the rights that should be controlled by the copyright owner or hindered them. to exercise the rights of the copyright holder.
"Copyright Law" Article 49 If a copyright or copyright-related rights is infringed, the infringer shall compensate the right holder according to the actual loss; if the actual loss is difficult to calculate, the infringer may be compensated according to the illegal income of the infringer. Amount of compensationIt should also include the reasonable expenses paid by the right owner to stop the infringement.
The actual losses of the right holder or the illegal gains of the infringer If the infringement cannot be determined, the people's court shall award a compensation of not more than 500,000 yuan based on the circumstances of the infringement.
Based on the above introduction, in judicial practice, commonly used There are two ways to identify copyright infringement. I believe that after reading the above introduction, everyone has a certain understanding of the legal knowledge of the principles for determining copyright infringement. If you still have legal questions in this regard, please consult the lawyers of the Legal Savior Network. Theywill provide you with professional answers.
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