Intellectual property rights are "the collective name of rights based on creative achievements and industrial and commercial marks". The three main intellectual property rights are copyright, patent right and trademark right, among which patent right and trademark right are also collectively referred to as industrial property rights. Intellectual property rights are translated into intellectual property rights, intellectual property rights or intellectual property rights. Civil subjects enjoy intellectual property rights according to law. Intellectual property rights are the exclusive rights enjoyed by the obligee to the following objects according to law:

1, works;

2. Inventions, utility models and designs;

3. Trademarks;

4. Geographical indications;

5. Trade secrets;

6. Layout design of integrated circuits;

7. New plant varieties;

8. Other articles prescribed by law.

First, the object has intangible intellectual property rights. Objects are intangible works, inventions and goodwill. It is invisible and must exist on a certain material carrier. The object of intellectual property is the intangible achievement carried or embodied by the intellectual material carrier.

This means that obtaining the material carrier does not mean enjoying the intellectual property rights it carries; Secondly, transferring the ownership of the material carrier does not mean transferring the intellectual property rights it carries at the same time; Finally, infringing on the ownership of the material carrier does not mean infringing on the intellectual property rights it carries at the same time.

Second, specific exclusivity, also known as exclusivity, means that without the permission of the intellectual property right holder or special provisions of the law, others may not carry out acts controlled by the exclusive right of intellectual property, otherwise it will constitute infringement. There are many differences between the exclusivity of intellectual property rights and the exclusivity of real rights, as follows:

1, exclusive sources are different. Because intangible things such as works, inventions and creations cannot be possessed like things, it is difficult for people to naturally form the concept that the use of intellectual property rights should be monopolized by creators or creators. On the contrary, the exclusiveness of intellectual property rights comes from the mandatory provisions of law;

2. Different forms of infringement of exclusivity have different methods to protect exclusivity. The exclusivity of infringing property rights is generally manifested in stealing, robbing, destroying or occupying things in other ways, while the exclusivity of infringing intellectual property rights is generally irrelevant to the material carrier bearing intellectual achievements, which is manifested in the act of controlling the exclusive right of intellectual property rights without the permission of the intellectual property right holder or the lack of special legal provisions;

3. The restrictions on exclusivity are different. Intellectual property rights are more restricted than property rights. For example, the copyright law stipulates "fair use" and "legal license", which all constitute restrictions on the exclusivity of copyright. In addition, there are timeliness and geographical restrictions.

Third, the timeliness of intellectual property rights means that the protection period of most intellectual property rights is limited, and once it exceeds the protection period stipulated by law, it will no longer be protected. Creative achievements will enter the public domain and become public resources that everyone can use; Trademark registration also has legal time effect. If the obligee fails to renew the registration upon expiration, it will also enter the public domain.

Four. Regionality Unless otherwise specified in international treaties, bilateral or multilateral agreements, the effectiveness of intellectual property rights is limited to domestic territory. The reason is that intellectual property is a legal right and a product of a country's public policy, which can only exist through the mandatory provisions of the law. The scope and content of their rights also depend entirely on the provisions of domestic laws, and the provisions on the acquisition and protection of intellectual property rights in different countries are not exactly the same. Therefore, in addition to copyright, intellectual property rights of a country belong to him.

1. Definition of copyright: refers to the general name of property rights and moral rights enjoyed by natural persons, legal persons or other organizations for literary, artistic and scientific works.

In China, copyright refers to copyright. Copyright in a broad sense also includes neighboring rights, which is called "copyright-related rights" in China's copyright law.

Two. Subject of Copyright The subject of copyright refers to a natural person, legal person or other organization that enjoys copyright in literary, artistic and scientific works in accordance with the copyright law. In the usual context, the author refers to the natural person who created the work, focusing on identity, but the author can not become the subject of copyright at any time.

In the legal sense, the author is the subject who makes creative contributions to the original expression of the work, and only organizes the work for the creation of others, providing suggestions and material conditions. , and can't become an author, because his behavior is not creative. According to the copyright law, the author can be one of the subjects enjoying copyright. According to the form of subject, the subject of copyright is divided into natural persons, legal persons and other organizations. Creation is a factual behavior, which can become the subject of copyright regardless of the age and intelligence level of the creator.

Generally speaking, a natural person is the author of a work, that is, only a natural person can become the subject of copyright. However, in order to balance and protect the interests of different stakeholders, and taking into account the organizational and material support paid by legal persons or other organizations when creating works, the law also allows legal persons or other organizations to become the original subject of copyright. According to the way of obtaining copyright, the subject of copyright can be divided into original subject (original copyright owner) and inherited subject (inherited copyright owner). The original subject of copyright is the subject who immediately enjoys the copyright of the created work in accordance with the copyright law and the contract. The successor of copyright obtains the subject of copyright through inheritance, assignment and gift. The original copyright owner and the successor copyright owner have different rights scope and rights protection methods.

Third, the object of copyright 1, the concept of the work

The object of copyright is a work, and a work refers to an intellectual achievement that is original and can be expressed in a certain form in the fields of literature, art and science. In the legal sense, a work has the following conditions:

(1) original

First of all, "uniqueness" in originality does not mean uniqueness, but rather that the work is independently completed by the author, not copied. Assuming that two works are independently completed by different authors, even if they are exactly the same or similar in substance, they can each generate copyright. A typical example is photography. Two photographers may shoot the same scenic spot successively, and the angles, framing and other contents are basically the same. But the latter photographer didn't see the work of the former photographer, so he shot independently, and the latter can also enjoy the copyright of his photographic works. Secondly, originality must satisfy certain creativity, reflect a certain level of intelligence and the author's personalized expression. Creativity is different from artistic standards. Whether it is a painter or an ordinary child, as long as their paintings can independently express their true feelings, thoughts and opinions according to their own arrangements and designs, they can all become works.

(2) Copyright is expressed in tangible form, which protects the expression of ideas rather than the ideas themselves. Works should be the expression of intellectual achievements, which can be perceived by people and expressed in a certain form. Thought is abstract and intangible, and it is not protected by law. Only when ideas are expressed in a certain form can they be perceived by others and become works protected by law.

2. Types of works

China's Copyright Law and Regulations on the Implementation of Copyright Law divide the types of works into the following categories:

(1) written works. Written works refer to novels, poems, essays, papers and other works expressed in written form.

(2) oral works. Oral works refer to works expressed in oral language such as impromptu speeches, lectures and court debates.

(3) Music, drama, folk art, dance and acrobatic works. Musical works refer to songs, symphonies and other works with or without words that can be sung or played; Dramatic works refer to stage performances such as dramas, operas and local operas; Quyi works refer to cross talk, fast prose, drums, storytelling and other works performed in the main form of rap; Dance works refer to works that express thoughts and feelings through continuous movements, postures and expressions; Acrobatic art works refer to acrobatics, magic, circus and other works expressed through body movements and skills.

(4) Artistic and architectural works. Art works refer to plane or three-dimensional plastic art works with aesthetic significance, such as painting, calligraphy and sculpture, which are composed of lines, colors or other ways; Architectural works refer to works with aesthetic significance in the form of buildings or structures.

(5) photographic works. Photographic works refer to artistic works that record the image of objective objects on photosensitive materials or other media by means of instruments.

(6) audio-visual works. Before the revision of the Copyright Law in 2020, this category was "cinematographic works and works created by methods similar to cinematography", which refers to works shot in a certain medium and composed of a series of pictures with or without sound, projected by appropriate devices or spread by other means. This revision makes the form of this type of work no longer limited by creative techniques, but pays attention to the form of creative achievements.

(seven) engineering design drawings, product design drawings, maps, schematic drawings and other graphic works and model works. Graphic works refer to engineering design drawings and product design drawings drawn for construction and production, as well as maps, schematic diagrams and other works that reflect geographical phenomena and explain the principle or structure of things; Model works refer to three-dimensional works made in a certain proportion according to the shape and structure of objects for display, experiment or observation.

(8) Computer software. Due to the particularity of computer software, computer software works are protected in accordance with the relevant provisions of the Regulations on the Protection of Computer Software. Computer software refers to computer programs and related documents.

(9) other intellectual achievements that meet the characteristics of the work. This is an all-encompassing clause, which is used to cover new forms of works that legislators fail to foresee, so that works that cannot be classified according to the above categories can be protected accordingly. The copyright law revised in 2020 changed the original expression of "other works stipulated by laws and administrative regulations", which is more conducive to playing the role of the bottom clause.

3. Unprotected objects

China's copyright law clearly stipulates the objects that will not be protected. This law does not apply to:

(1) Laws and regulations, resolutions, decisions and orders of state organs and other documents with legislative, administrative and judicial nature and their official translations;

(2) Simple factual information;

(3) Calendar, general tables, general tables and formulas. In addition, the concept, theme, operation method, technical scheme, practical function, etc. It belongs to the ideological level, does not constitute a work, and is not protected by copyright law.

4. Acquisition of copyright

According to the principle of automatic acquisition adopted in China, when a work is created, as long as it meets the legal conditions of the work, copyright will be generated. The copyright owner can apply to the copyright administrative department of our country for copyright registration, but registration is not the legal condition for copyright. The work registration procedure only examines the ownership information of the work in form, and generally only plays the role of preliminarily proving the ownership of copyright.

5. Neighboring right

Neighboring right belongs to copyright in a broad sense, and its original intention is neighboring and related rights. China's Copyright Law calls neighboring rights "copyright-related rights". Neighboring rights holders only enjoy property rights except performers.

Neighborhood rights include the following types:

(1) Rights of Performers

Performer's right is the exclusive right that performers enjoy for their performances according to law. Performers refer to actors, performance units or other people who perform literary and artistic works. Performers' rights include personal rights and property rights.

The individual rights of performers are:

First, the right to show identity;

B, the right to protect the performance image from distortion.

Performers' property rights include:

A. Allow others to broadcast live and publicly disseminate their live performances, and get paid;

B. Permit others to record and video, and get paid;

C. Permit others to copy, distribute and rent the audio-visual products of their performances, and receive remuneration;

D. Allow others to disseminate their performances to the public through the information network and get paid. A performance performed by an actor to complete the performance task of a performance unit belongs to a job performance. An actor has the right to show his identity and protect the image of the performance from distortion, and other rights shall be agreed upon by the parties. If there is no agreement or unclear agreement between the parties, the performance right shall be enjoyed by the performance unit. The right to perform shall be enjoyed by the actors, and the performing unit may use the performance for free within its business scope.

(2) the rights of the layout designer

The right of layout design refers to the right of publishers of books and newspapers to design the layout of books and newspapers published or edited by them. The term of protection of this right is ten years, ending at 65438+February 3 1 day in the tenth year after the book or periodical designed with this layout is first published.

(3) the right of broadcasting organization

The right of broadcasting organization refers to the exclusive right of broadcasting organizations to the radio and television programs they produce according to law. The right of broadcasting organization includes:

A. Broadcasting organizations may prohibit unauthorized persons from relaying their radio and television programs by wired or wireless means;

B, recording and reproducing broadcast radio and television;

C broadcast radio and television to the public through the information network. The term of protection of this right is fifty years, ending on 65438+February 3 1 day in the fiftieth year after the first broadcast of this radio and television.

D. Right of producers of audio and video recordings

The right of producers of sound recordings and video recordings refers to the exclusive right that producers of sound recordings and video recordings enjoy according to law. Sound recordings refer to sound recordings of any performances and other sounds; Video products refer to recordings of any continuous related images and images with or without sound other than audio-visual works. Producers of audio and video recordings have the right to license others to copy, distribute, rent and disseminate their audio and video recordings to the public through information networks and receive remuneration; The protection period of the right is fifty years, ending at 65438+February 3 1 day in the fiftieth year after the first production of the product.

6. Content of copyright

The content of copyright refers to the sum of the exclusive rights enjoyed by the copyright owner according to law. According to China's copyright law, the content of copyright includes the personal rights of works and the property rights of works.

Personal rights of works include:

(1) right of publication. The right of publication is the right to decide whether a work is open or not. The right of publication can only be exercised once by the author, except in special circumstances;

(2) the right to sign. The right of authorship is the right to show the identity of the author and sign his name on the work. Including the author has the right to decide whether to sign, use real name, pseudonym and pen name when signing, and prohibit or allow others to sign;

(3) the right to modify. The right to modify, that is, the right to modify or authorize others to modify works;

(4) the right to protect the integrity of the work. The right to protect the integrity of a work means the right to protect the work from distortion and tampering.

The property rights of the works include:

(1) Reproduction right means the right to make one or more copies of a work by printing, copying, rubbing, audio recording, video recording, reproduction and digitization. ;

(2) the right of distribution, that is, the right to provide the original or duplicate of a work to the public by way of sale or gift;

(3) the right to lease, that is, the right to temporarily license others to use the original or duplicate of audio-visual works and computer software, except that computer software is not the main object of lease;

(4) the right of exhibition, that is, the right to publicly display the original or duplicate of an artistic work or photographic work;

(five) the right to perform, that is, the right to publicly perform a work and publicly broadcast the performance of the work in various ways;

(six) the right of expression, that is, the right to publicly copy art, photography, audio-visual works, etc. Through projectors, slide projectors and other technical equipment;

(7) The right to broadcast, that is, the right to publicly broadcast or rebroadcast a work by wired or wireless means, and the right to broadcast a work to the public through loudspeakers or other similar tools for transmitting symbols, sounds and images, but excluding the right stipulated in Item 12 of Paragraph 1 of Article 10 of the Copyright Law (the right to disseminate information on the Internet);

(eight) the right of information network communication, that is, the right to provide it to the public by wired or wireless means, so that the public can obtain the work at the time and place of their choice;

(9) the right to film, that is, the right to fix the audio-visual work on the carrier by shooting it;

(10) the right of adaptation, that is, the right to modify a work and create a new original work;

(1 1) Translation right, that is, the right to convert a work from one language to another;

(12) the right to assemble, that is, the right to assemble a work or a fragment of a work into a new work through selection or arrangement;

(13) Other rights that copyright owners should enjoy.

7. Copyright restrictions

Copyright restriction refers to the system that civil subjects can use their works or articles protected by relevant rights within the scope prescribed by law without the permission of the copyright owner, which does not constitute infringement.

8. Rational use

Fair use refers to the system that subjects other than the copyright owner can use the work without the permission of the copyright owner and without paying remuneration to the copyright owner under the circumstances stipulated by law. In the case of legal and reasonable use, the author's name and the title of the work shall be indicated, which shall not affect the normal use of the work or reasonably harm the legitimate rights and interests of the copyright owner. China's Copyright Law stipulates that fair use is:

(1) Use the published works of others for personal study, research or appreciation.

(2) appropriately quoting published works of others in works for the purpose of introducing and commenting on works or explaining problems;

(3) Inevitably reprinting or quoting published works in newspapers, periodicals, radio stations, television stations and other media in order to report news;

(4) Newspapers, periodicals, radio stations, television stations and other media publish or broadcast current affairs articles related to political, economic and religious issues that have been published by other newspapers, periodicals, radio stations, television stations and other media, unless the copyright owner declares that they are not allowed to publish or broadcast;

(5) Newspapers, periodicals, radio stations, television stations and other media publish or broadcast speeches delivered at public meetings, unless the author declares that they are not allowed to publish or broadcast;

(6) Translating, adapting, assembling, broadcasting or reproducing a few published works for classroom teaching or scientific research in schools and for teaching or scientific research personnel, but not for publication and distribution;

(seven) the use of published works by state organs within the reasonable scope of performing official duties;

(8) Libraries, archives, memorial halls, museums, art galleries, cultural centers, etc. Reproduce the works collected by the library for the purpose of displaying or saving the version;

(9) Performing published works for free, without charging fees to the public, without paying remuneration to the performers, and not for profit;

(10) Copying, painting, photographing and video recording works of art set up or displayed in public places;

(1 1) Translate the works published by China citizens, legal persons or unincorporated organizations in the national common language into the works published in minority languages in China;

(12) Provide published works to people with dyslexia in a barrier-free way that they can perceive;

(13) Other circumstances stipulated by laws and administrative regulations. In addition, restrictions on copyright-related rights (neighboring rights) also apply to the above provisions.

9. Legal permission

Legal license refers to the system that subjects other than the copyright owner can use their works without the permission of the copyright owner under the circumstances stipulated by law, but they need to pay remuneration to the copyright owner. China's Copyright Law and related laws stipulate the statutory license:

(1) Legal Permission for Textbook Compiling In order to compile and publish textbooks for the implementation of compulsory education and national education planning, published pieces of works, short stories, musical works or single artistic works, photographic works and graphic works may be compiled in textbooks without the permission of the copyright owner, but remuneration shall be paid to the copyright owner in accordance with the regulations, and the author's name and work title shall be indicated, and other rights enjoyed by the copyright owner in accordance with this Law shall not be infringed.

(2) Legal permission for newspaper reprinting. If the copyright owner submits a manuscript to a newspaper or periodical agency, after the work is published, other newspapers and periodicals may reprint it or publish it as an abstract or data, except that the copyright owner declares that it is not allowed to reprint or extract it, but it shall pay remuneration to the copyright owner in accordance with the regulations.

(3) Legal permission of musical works. A producer of a sound recording may, without the permission of the copyright owner, use a musical work that has been legally recorded as a sound recording by others to make a sound recording, but shall pay remuneration in accordance with the provisions; If the copyright owner declares that it is not allowed to use it, it shall not be used.

(4) The legal permission of a radio station or television station to broadcast a published work. Radio and television stations may broadcast published works of others without the permission of the copyright owner, but they shall pay remuneration in accordance with the regulations. However, playing audio-visual works requires the permission of the copyright owner of the audio-visual works, and playing video products requires the permission of the video producer and copyright owner.

(5) Legal permission to make courseware. The Regulations on the Protection of Information Network Communication Rights stipulates that in order to implement the nine-year compulsory education or national education plan through the information network, published pieces of works, short films, music works or separate artistic and photographic works can be used to make courseware without the permission of the copyright owner, and the distance education institution that made the courseware or obtained the courseware according to law will provide it to registered students through the information network, but the copyright owner should be paid.

10, the distribution rights are exhausted.

Exhaustion of copyright rights means that after the original or copy of the original work is put on the market by way of sale, anyone continues to issue and sell the original or copy of the work without permission and without paying remuneration to the copyright owner, which does not constitute infringement. The exhaustion of copyright does not mean the extinction of copyright, but the exhaustion of the distribution right of the original or copy of the work that has legally entered the market.