What are the requirements for copyright infringement
1. There is a specific object of infringement, that is, a work, such as a written work , musical works, dance works and other specific work forms and carriers.
2. The infringed work must be within the protection scope of copyright law. Works that do not meet the protection meaning of copyright law, fair uses of works, and works that have expired and entered the public domain are not protected.
3. The rights infringed must be exclusive rights expressly protected by copyright law. Such as publication rights, signature rights, rights to protect the integrity of works, modification rights, reproduction rights, distribution rights, rental rights, exhibition rights, performance rights, screening rights, broadcast rights, information network dissemination rights, filming rights, compilation rights, etc.
4. The infringed party must enjoy the copyright to the work.
5. The infringed party must prove that the infringer has committed infringement.
Principles for determining copyright infringement
In judicial practice, the commonly used principles for determining copyright infringement are:
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1. Dichotomy between ideas and expressions
Excludes the ideas of works from the scope of protection of copyright law outside. 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, the 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, the expression is also not within the scope of protection.
2. The principle of contact and similarity
In the separation of thought and expression, public domain and private domain After that, if the 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 rights holder’s work is identical or similar to that of the defendant, and the defendant cannot provide its creative process to prove that it did not imitate but created independently, the infringement will be 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 had contact with the plaintiff's work, otherwise it can be presumed that there has been contact.
In determining whether two works are identical 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 a work and how to judge the substantive part is still a matter of opinion. This needs to be further explored in judicial practice.
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