Network Infringement of Literary Works

The rapid development of network technology makes the dissemination, tossing and variation of works extremely fast and simple, and the traditional theory of copyright protection has obviously not adapted to or even hindered the development of the Internet industry. It is necessary for us to make a comparative study of online copyright and traditional copyright to guide the relevant legislation and law enforcement in China.

First, the current situation of China's literary works being infringed by the Internet.

The advent of the Internet era has brought new problems and challenges to the application of tort law. Cyberspace is an interactive world composed of tangible infrastructure, software and human activities with the Internet as the medium. National boundaries? System. As a global information system, the network connects hundreds of millions of computers in hundreds of countries. People can carry out the corresponding infringement on any computer at will, so the determination of infringement location is very random and accidental in cyberspace.

For example, a website in the United States has uploaded many infringing works for others to download for free, and the global nature of the Internet makes it possible for any computer terminal all over the world to download these infringing works, which means that any place in the world may become a place where infringement results occur. This will cause it to lose its original meaning in cyberspace, especially in legal relations with strict geographical characteristics.

It must be pointed out that the subject of legal relationship in the network or the subject of the real world can't just look at it anyway. Network? Didn't you see it? People? . Law always regulates and must regulate the relationship between people, otherwise there is no need to exist. The problem brought by network infringement only makes the number of legal choice problems that were originally difficult to deal with surge and become more complicated, but the essence of the problem has not changed. For network infringement, although we need and must make appropriate or even very big changes in the method of legal choice and the determination of connecting points, we don't need a brand-new set of applicable rules of law.

For literary creation and communication, the Internet environment is undoubtedly a hand? A double-edged sword? . It not only promoted a group of writers from obscurity to fame, but also brought troubles to many writers. 20 1 1, 50 writers jointly denounced? Baidu library? It triggered a heated discussion and became a typical incident in which literary works were infringed by the Internet. The incident was called by netizens? 50 writers defend their rights? . This is due to a book? Published by nearly 50 writers including Jia Pingwa, Liu, Han Han, Jing M, etc. 15 China Writers Ask Baidu Book. Is it here? Ask for Baidu books? China people, the writer said, Baidu belongs to? Baidu library? Providing free download of documentary works has done harm to China's original literature. If all books can be read for free, there won't be any books for a long time. ? Obviously, this condemnation refers to the network infringement of literary works. This is an old problem that has been debated endlessly, and it is also a major problem in the Internet environment. Although the writer's condemnation lacks some legal effect, it has once again aroused public concern about this issue and formed a public opinion offensive in society, which is very important for promoting people's image. Baidu library? This kind of network platform will undoubtedly help self-examination, stop infringement and embark on the track of legal and standardized operation. This should also be the original intention of many writers.

For a long time, there were many documents on the Internet? Free lunch? It has brought benefits to related websites and their readers, but it has also caused some practical harm: it has disturbed the market order of cultural publishing, directly infringed on the legitimate rights and interests of writers, seriously affected their creative enthusiasm, and inevitably caused them to get involved in energy because of the fatigue of safeguarding rights. This will have a serious negative impact on the writer's own creation and the prosperity of China's contemporary literature. As we all know, literary creation is a hard mental work, which requires writers to be undisturbed and unfocused. As for the Internet, it should bring convenience to writers' work and life, but it should never be an obstacle. Therefore, it is forced by reality to let writers continue to create excellent literary works and dedicate them to readers in a good network living environment.

The literary works discussed in this paper include paper literary works published in real society and literary works serialized on websites. The network infringement mentioned in this article includes: (1) publishing his works online without the permission of the copyright owner; (2) publishing a work created in cooperation with others on the Internet as a work created by oneself without the permission of a co-author; (3) Not participating in the creation, in order to seek personal fame and fortune, after signing other people's works, publishing them online; (4) distorting or tampering with works published by others on the Internet; (five) the use of other people's works on the Internet should be paid but not paid; (6) Using the layout design of books and periodicals published by publishers on the Internet without the permission of publishers; (seven) other acts of infringement of copyright and copyright-related rights and interests on the Internet.

Second, the infringement analysis of online literary works

The rapid development of network technology makes the dissemination, tossing and variation of works extremely fast and simple, and the traditional theory of copyright protection has obviously not adapted to or even hindered the development of the Internet industry. It is necessary for us to make a comparative study of online copyright and traditional copyright to guide the relevant legislation and law enforcement in China. The author thinks it is necessary to analyze the characteristics of network infringement of literary works.

(A) Internet infringement has a wide range of infringement.

We live in an Internet age. Now every country, every region and every city is surrounded by the Internet. The internet has really turned the earth into a global village. Once the internet infringes on literary works in a corner of the world, this kind of infringement will be copied improperly, and the infringement will spread and popularize without restriction, which will easily lead to uncontrollable scenes and consequences. The protection of copyright is regional, and the rights that often transcend national boundaries are no longer effective and are no longer protected by the laws of this country or region. Even within a country, there will be differences in the protection of rights holders, and the Internet has no borders.

There are many uncertainties in determining the court of dispute jurisdiction and choosing the applicable law. For example, it is impossible to determine the original publishing country of online works and which country should be effective. Use the regionality of copyright to develop e-commerce business? Parallel import? And so on have greatly broadened the field of infringement and weakened the exclusiveness of copyright. Various uncertain factors hinder the protection of online copyright, and the existing laws and international cooperation agreements can not be followed up and updated in time, which often leads to the proliferation of online copyright infringement, making the infringing area quickly surpass a region and country, showing a trend of globalization. Some scholars think that the disappearance of regional copyright of online works is? What is the total conflict between the globality of computer network and the regionality of traditional intellectual property rights? .

(2) The consequences of network infringement are more serious.

Due to the rapidity of network communication, a literary work is often infringed repeatedly after being infringed by the network, and the corresponding damage consequences to the obligee are extremely serious. Compared with the traditional copyright infringement, it has a wider scope and causes greater damage, and the infringement will cause more serious damage consequences in a shorter time. For example, in recent years, some literary works have been involved in online infringement disputes, and defendants have appeared? Play other people's works regularly through the computer network? The characteristic of the new infringement dispute caused by this behavior is that it is not a point-to-point interactive communication behavior, but a point-to-multipoint communication behavior. Netizens can only watch movies and TV works regularly, not at the time they choose, nor can they affect the playing process in other ways. To some extent, this is no different from TV communication. Once there is infringement, the consequences are unimaginable.

(3) The network infringement of literary works is hidden.

Due to the development of network technology, especially the development of link technology, the behavior of network infringement of copyright has great concealment. Compared with the traditional material forms of copyright infringement, online copyright infringement often has intangible forms. Network links can be divided into external links and internal links. External links are also called ordinary links, that is, links directly to the home pages (home pages) of other websites. The object it links to is the home page of the website. At this point, all the contents of the linked website are displayed on the screen. Internal link, also called deep link, is a way to bypass the homepage of the website and link to paging. The difference between the link tag and the external link is that the link tag stores a page in the linked website instead of the homepage of the website, which causes users to misjudge the attribution of the author of the webpage, damages the integrity of the website content and weakens the publicity and influence of the website. In commercial websites, it is this way of linking that easily leads to network link disputes. Compared with the traditional infringement method, this kind of infringement method of network link is more hidden and not easy to be detected.

Third, the countermeasures to solve the problem of literary works being infringed by the Internet.

(1) Establish and improve the copyright registration system for works.

China implements the system of automatically generating copyright as soon as a work is created. But if the work is unsigned,

It is difficult to confirm the identity of the obligee or change it easily by signing under a pseudonym or electronically, and it is not conducive to others to obtain the legal authorization of the real obligee. Many disputes have occurred in practice. It is suggested to improve the voluntary registration system of works, that is, the author can mark the copyright on the works after completing them? c？ And explain the identity; You can also submit the work to the relevant departments for the record to obtain the registration certificate, which can be used as the preliminary proof of copyright in case of dispute.

(2) Balance the protection and restriction of rights.

On the one hand, the society calls for strengthening the copyright protection of works, especially online works, because the proliferation of online piracy has become a major problem threatening cultural and artistic creation; On the other hand, there is also a problem that excessive use of rights protection means is not conducive to the spread of culture and art, and it is necessary to balance the protection and restriction of copyright. On February 20th, 20112, the Supreme People's Court issued "Opinions on Giving Full Play to the Judicial Function of Intellectual Property Rights to Promote the Great Development and Prosperity of Socialist Culture and Promote the Independent and Coordinated Development of Economy", proposing that we should accurately grasp the balance of interests among obligees, network service providers and the public, not only strengthen copyright protection under the network environment, but also pay attention to promoting the technological innovation and business model development of information networks. The main purpose of the opinion is to promote cultural prosperity and development, and network technology innovation and business model development are the basic driving forces to promote cultural prosperity and development. Strengthening copyright protection under the network environment is to safeguard the interests of obligees and objectively limit the ways and costs for the public to obtain works; Promoting the innovation of information network technology and the development of business model is beneficial to the overall interests of the public.

(3) Improve the collective management of copyright and adjust the legal compensation for copyright infringement.

It is necessary to improve the collective management mechanism of copyright and related authorization, licensing mechanism and rights distribution mechanism, and change the problems of chaotic management institutions, opaque mechanisms and inadequate income distribution. At present, the legal compensation limit of 500,000 yuan for copyright infringement is somewhat low, so it is necessary to refer to the Patent Law and Trademark Law to raise the compensation limit.

Distinguish the responsibilities of providers and content service providers.

Technical service providers only provide information storage space or technical services such as search and link services, and do not provide content or edit the content provided by users, such as access services provided by China Telecom and China Unicom, and pure search or storage services. Can technical service providers apply? Safe haven? Principle, that is, the principle of notification plus deletion, is responsible for timely deletion after receiving the notice from the obligee, and is not liable for compensation. Therefore, as long as the network technology provider has no subjective intentional infringement, it can be exempted. Content service providers not only provide a platform, but also edit and process the content and put it on the Internet for users to browse or download. The content provided by the content service provider is operated by itself, and there is no ignorance exemption premise, so the responsibility is heavier than that of the network technology provider, so it is not applicable? Safe haven? In principle, as long as you upload and publish unauthorized content, it constitutes infringement.

[References]

Liu Xiaolan. Research on Copyright Protection of Network Literature [J]. Modern Publishing, 20 1 1, (05).

[2] Kim. Enlightenment of Baidu's network infringement case on copyright protection in China at this stage [J]. All rights reserved by China, 20 1 1, (06).

[3] Ma Bi. Analysis of copyright infringement liability of online document sharing platform [J]. Foreign investment in China, 20 1 1, (08).

Network infringement paper 4

Analysis on the Determination of Internet Copyright Infringement

The development of digital technology has changed the way of information dissemination, resulting in new things such as digital publishing and online copyright, and the infringement of online copyright has also appeared, but there are many problems to be solved urgently. Aiming at the identification of network copyright infringement, this paper starts with the definition of network copyright and its infringement, analyzes the problems faced by the identification of network copyright infringement at the entity level and the evidence level, and puts forward corresponding solutions.

Keywords: identification of online copyright infringement

First, the concept, characteristics, manifestations and characterization of online copyright infringement.

(A) the concept of online copyright infringement

Network copyright is a new type of copyright under the background of digital age, which is produced with the rise of digital publishing. Network copyright, also known as copyright, refers to the rights enjoyed by the authors of intellectual works such as literature, music, movies, scientific works, software, pictures and designs on the Internet. Some scholars believe that network infringement is an infringement that extends to the network and network environment, which in turn leads to network infringement. Some people think that network infringement refers to the act of infringing on the personal and property rights of others in the network environment, but it does not include the damage to network transmission equipment or facilities in the real society. As a new type of infringement case, it is different from the traditional infringement. The author believes that network infringement refers to the behavior of infringers who use network information technology to infringe on the civil rights and interests of the state, the collective or the individual protected by laws and regulations under the Internet environment.

(B) the characteristics of online copyright infringement

1. Infringement is hard to identify. The identification of infringement must rely on evidence, and the digital information in the network is a discrete signal composed of binary, which is discontinuous, difficult to be found after modification or deletion, and difficult to obtain evidence. Therefore, it is difficult to identify infringement with the information in the network as evidence.

2. The subject of infringement is difficult to determine. Ordinary netizens can choose their favorite names to be my own netizens on the website, but their real identities are unknown, and some users can be anonymous? Do you want to go out to play together? In the network, it is impossible to find out the true identity of this user.

3. The consequences of infringement spread rapidly. The global and real-time nature of the network makes the dissemination of network information more convenient, fast and extensive, and also makes the consequences of infringement spread everywhere in a short time, but the obligee can't stop it in time.

The jurisdiction of this case is not easy to determine. The jurisdiction of tort is usually governed by the law of the place where the defendant is located or the law of the place where the tort is committed. However, the network is a special global space, and the places where the same infringement usually occurs are far apart, even beyond national boundaries, but the network cases we want to solve are complicated, which undoubtedly poses a difficult problem to our current jurisdiction regulations.

(C) the manifestations of online copyright infringement

1. Digitize other people's works and publish them online without permission.

This behavior mainly involves digitizing unfinished or completed works and publishing them on the Internet without the permission of the obligee, which infringes on the obligee's right of information dissemination and publication on the Internet. This behavior is common in some free download websites such as pictures, e-books and movies.

2. Illegal reprinting.

This kind of behavior includes two situations: one is to reprint the works published by others on the internet and declare that they cannot be reproduced to other networks; Second, although the right holder did not clearly indicate whether his work could be reproduced, the actor did not indicate the identity information of the right holder when reprinting, nor did he pay the fee to the right holder. This behavior is more common in forums, Weibo and other open online communication communities or portals.

3. Infringe on the right of web design.

This behavior includes two ways: one is to directly copy the source code of other people's web pages or make local modifications on the basis of this code; The second is to steal other people's web design or make local modifications on this basis. The actors of this behavior are mostly web designers.

4. Infringement of network trademark rights.

Network trademark is a special trademark that the right holder digitizes or redesigns its trademark to adapt to the network. This kind of trademark is usually more complicated than ordinary trademarks, and may contain elements such as words, pictures, sounds and animations. Torts are mostly manifested in confusing people with similar designs, which is difficult to identify and judge.

5. Illegal link guide.

This behavior includes two basic forms: one is the illegal connection guidance of search engines, and some search websites directly connect other people's websites to their own search databases as part of themselves; Second, ordinary websites hide other people's websites in their own website pages, and users don't know that they are browsing other websites' information when browsing related information.

6. Infringement of domain name rights. There are two forms of this behavior: one is? Malicious cybersquatting? Behavior, when other institutions and enterprises fail to register domain names according to their trademarks and names. They first registered maliciously according to such information, and then sold them to these institutions and enterprises at high prices; The second is to use domain names similar to other websites to mislead users, increase the number of clicks on their own websites, and even engage in fraudulent activities.

Second, the problem of online copyright infringement in China

(A) the constitutive requirements of online copyright infringement

At present, the main point of view on the constitutive elements of tort is that the constitutive elements of tort are whether there is damage, the result of damage, whether there is causal relationship between the first two items and the subjective fault of the actor, that is, the so-called four elements theory, only an act that meets the four elements at the same time can be called tort; In addition, some scholars believe that when identifying infringement, we should also consider the reasons for illegal exclusion, that is, if there are reasons for illegal exclusion, then the act does not belong to infringement. The author thinks that the division of the constitutive requirements and the consideration of the reasons for rejection are equivalent to the determination of tort liability.

The identification of tort and tort liability have the same goal, both of which are to finally complete the division of rights and obligations and restore justice, but they are different. The determination of tort is the determination of the illegality of the subject's behavior, and the consideration of the damage result, causality, subjective fault of the perpetrator and the cause of infringement belongs to the determination of tort liability. The determination of tort is the premise of tort liability, and the determination of tort liability is the next step. They are two different stages.

(2) Illegal acts

There are two aspects to the problem of illegal behavior: first, the behavior does exist, that is, the identification of the facts of the behavior; The second is the illegality of the act itself, that is, the act of identification infringes on the object clearly protected by law. Once the object of network copyright protection is determined, all improper factual acts against the object can be identified as infringement, but there are problems in both aspects at present.

The identification of behavioral facts is mainly to determine the subject and mode of behavior. The difficulty this part faces comes from the particularity of network information, which increases the difficulty of identifying behavior facts. This part will be discussed in detail in the next part of the article. In addition, the scope of protection of online copyright and the way of obtaining online copyright in China's current legislation are not clear, which leads to the lack of protection of copyright owners' creative achievements and increases the difficulty of identifying online copyright infringement.

(3) The particularity of network information increases the difficulty of identification.

The identification of infringement depends on evidence, and the identification of network infringement mainly depends on network information. However, the digital storage and modifiability of network information pose new challenges to the traditional rules and standards of evidence authentication, and increase the difficulty of judge identification.

1. Network information has brought great impact to rumor rules.

With the acceleration of digitalization, more and more network information becomes evidence and enters litigation. The producers or insiders of these network information will not testify in court, and many network information automatically generated by the system has also become evidence, such as consumption records, company financial statements, system-generated logs, etc., which should be included in the scope of hearsay evidence, and its admissibility needs more inspection.

2. The admissibility standard of network information is not clear when the infringement is identified.

It is very important to determine the admissibility of evidence when infringing, so it is necessary to clarify the admissibility standards of network information. At present, there is no clear standard of legality and authenticity of network information in China, and the particularity of network information also requires a large number of professional skills or professionals in the authentication process. Therefore, in many cases, judges are usually reluctant to use network information that has no clear standards and is difficult to authenticate, which makes it more difficult to identify network copyright infringement.

Third, suggestions on perfecting the identification of online copyright infringement.

(1) Clarify the scope of protection and access to online copyright.

Clarify the scope of protection and acquisition of network copyright, expand the scope of protection on the existing basis, and all improper factual acts within this scope of protection can be identified as infringement.

First of all, a work should meet four conditions before it can be protected by law: first, it should be an intellectual achievement with innovative content; Second, it must be works in the fields of literature, art and science and technology; Third, it can be copied and original; Fourth, work must not violate laws and regulations and the prohibition of public order and good customs. Therefore, as long as the works published by means of binary technology or unpublished works that condense other people's intellectual labor achievements meet the above conditions and are published on the Internet, they should be protected by law, including legally editing and processing the original works digitally, and directly creating and publishing works in digital platforms, web page design, domain names and so on. The way to obtain it is to publish it first, and the obligee publishes it online first, so as to resist the registration of a third party.

Secondly, if a work meets the above four requirements but has not been completed, and is published by the actor on the Internet without the permission of the creator, and there is a dispute without the signature of the creator or the permission of the creator, then the copyright of the published or used part of the work should belong to the creator, publisher or user. If a work is published without the permission of the creator, the published work is signed by the creator, and its publishing behavior is still infringement. However, whether or not to bear the responsibility belongs to the category of responsibility determination, and the author may consider ratification afterwards.

(b) To rule on exceptions to the hearsay rule

The printout of network information that can guarantee its authenticity and is not generated in the process of investigation or for the purpose of litigation should be regarded as an exception to the hearsay rule. This printout is only the external expression of computer records, and its purpose is to enhance the readability of network information, while the actual network information is a potential electronic record, not the printout itself.

(3) Determining the admissibility of network information in the determination of network copyright infringement.

The admissibility of network information mainly includes three aspects: relevance, legitimacy and authenticity. Relevance is mainly the degree of correlation between network information and infringement, which is an easy problem to solve, so the problem is authenticity and legitimacy. The legitimacy of network information is mainly reflected in its generation, transmission, storage, presentation and other aspects. Network information may infringe on others' right to freedom of speech and privacy in all aspects, especially in transmission and presentation. Authenticity means that the form is complete and true, but the computer system and network system on which the network information depends are vulnerable to attack, and the network information itself is easy to be modified and difficult to leave traces.

For legality, three conditions should be met at the same time: first, the subject of collecting network information should comply with the law; Second, the form of expression should conform to the form prescribed by law; Third, the collection procedure is legal. Authenticity can be directly identified and inferred: in direct identification, as long as the integrity and authenticity of network information can be judged by conventional means, its authenticity can be determined; When it can't be identified by conventional methods, it can be inferred that as long as the computer system and hardware on which the network information depends can be proved to be reliable and running normally, then the network information can be presumed to be flawless, so as to determine its authenticity.

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