Internet infringement essay (2)

Article 3 on Internet Infringement

A brief discussion on Internet infringement of literary works

The rapid development of network technology has made the spread, transfer and mutation of works become Extraordinarily fast and simple, the traditional copyright protection theory has obviously been unable to adapt to and even hindered the development of the Internet industry. It is necessary for us to conduct comparative research on online copyright and traditional copyright to guide our country's relevant legislation and law enforcement.

1. The current situation of Chinese literary works being infringed by the Internet

The advent of the Internet era has brought new problems and challenges to the legal application of infringement. Cyberspace is an interactive world composed of physical infrastructure, software and human activities using the Internet as a medium. It is a system that completely transcends "national boundaries". As a global information system, the Internet connects hundreds of millions of computers in hundreds of countries. People can carry out corresponding infringing acts on any computer at will, so the determination of the location of infringing acts is highly arbitrary and accidental in cyberspace.

For example, a website in the United States uploads many infringing works for others to download for a fee. The global nature of the Internet allows any computer terminal around the world to download these infringing works, which means that all Anywhere in the world may be the place where infringement results occur. This will cause the important connection point of the place of infringement to lose its original meaning in cyberspace, especially in legal relationships with strict geographical characteristics.

It must be pointed out that the subjects related to legal relationships on the Internet are still subjects in the real world. In any case, we cannot just see the Internet but not the people. What the law regulates at any time is and must be the relationship between people, otherwise there is no need for it to exist. The problems brought about by online infringement only make the number of legal choice issues that are originally difficult to deal with increase and become more complicated, but the essence of the problem does not change. For online infringement, although we need and must make appropriate and possibly very big changes in aspects such as choice of law methods and determination of connection points, a completely new set of legal application rules is not required.

For literary creation and dissemination, the Internet environment is undoubtedly a "double-edged sword". It has not only helped a number of writers to go from unknown to famous, and from famous to famous, but at the same time, it has also caused troubles to many writers. In 2011, 50 writers jointly criticized Baidu Library, sparking heated discussions and becoming a typical incident of literary works being infringed on the Internet. This incident was called "50 Writers Rights Protection" by netizens. It originated from the "3.15 Chinese Writers Asking for Baidu Book" jointly published by nearly 50 writers including Jia Pingwa, Liu Xinwu, Han Han, and Guo Jingming. In this letter criticizing Baidu, the writers claimed that Baidu Wenku, to which Baidu belongs, provides free downloads of document works, which has caused harm to China's original literature. If all books can be read for free, then in the long run, it will inevitably There will be no books to read. ?Obviously, this condemnation document refers to the issue of online infringement of literary works. This is an old issue that has been debated endlessly, and it is also a chronic disease in the Internet environment. Although the writers' letter of condemnation still lacks some legal effect, after all, it has once again attracted public attention to this issue and formed a public opinion offensive in society, which has promoted the establishment of online platforms such as Baidu Library. It will undoubtedly be helpful to re-examine ourselves, stop infringement activities, and embark on the track of legal and standardized operations. This should also be the original intention of the writers.

For a long time, the large number of literary "free lunches" on the Internet has brought benefits to related websites and their readers, but it has also caused certain practical harm: while disrupting the order of the cultural publishing market, , it also directly infringes upon the legitimate rights and interests of writers, and seriously affects the writers' enthusiasm for creation, inevitably causing them to be exhausted from defending their rights. This will have a serious negative impact on both the author's own creation and the prosperity of my country's contemporary literature. As we all know, literary creation is a hard mental work that requires writers to do it without interruption and without distraction. As for the Internet, it should add convenience to the work and life of writers, and it should never create a hindrance.

Therefore, it is forced by reality to allow writers to continue to create excellent literary works and contribute them to readers in a good online living environment.

The literary works discussed in this article include paper literary works published in real society, as well as literary works serialized on websites. The online infringements referred to in this article include: (1) publishing works on the Internet without the permission of the copyright owner; (2) publishing works created in collaboration with others as independently created works without the permission of the co-author; (3) Without participating in the creation, in order to seek personal fame and gain, he signed other people's works and published them online; (4) Distorted or tampered with other people's works and published them online; (5) When using other people's works online, remuneration should be paid and has not been paid; (6) Using the layout design of books and journals published by the publisher online without the publisher's permission; (7) Carrying out other infringements of copyright and copyright-related rights and interests online.

2. Analysis of Internet Infringement of Literary Works

The rapid development of network technology has made the dissemination, transfer and mutation of works extremely fast and easy. The traditional theory of copyright protection, It has obviously been unable to adapt to and even hindered the development of the Internet industry. It is necessary for us to conduct comparative research on online copyright and traditional copyright to guide our country's relevant legislation and law enforcement. The author believes that it is extremely necessary to conduct a characteristic analysis of online infringements of literary works.

(1) Internet infringements cover a wide area of ??infringement

We live in an era of the Internet. Nowadays, every country, region, and city is surrounded by the Internet and Surrounded by the Internet, the Internet has truly turned the earth into a global village. Once online infringement of literary works occurs in a certain corner of the world, and this infringement is improperly copied, the infringement will be spread and promoted without restriction, which can easily lead to uncontrollable scenes and consequences. The protection of copyright is territorial. Rights related to copyrights that transcend national boundaries are often no longer valid and can no longer be protected by the laws of this country or region. There will even be differences in the protection of rights holders within a country, and the Internet The borderless nature creates many uncertainties in determining the jurisdiction of the dispute and choosing the applicable law. For example, it is impossible to determine the country of original publication of an online work and the country and region in which it should be valid. The development of e-commerce business, "parallel import" using the geographical nature of copyright, etc. have greatly broadened the area of ??infringement and weakened the exclusivity of copyright. Various uncertain factors hinder the protection of online copyrights. In addition, existing laws and international cooperation agreements cannot be followed up and updated in a timely manner, which often leads to the proliferation of online copyright infringements. Once an infringement occurs, the area of ??infringement quickly exceeds one region. countries, showing a tendency to spread around the world. Some scholars believe that the disappearance of the regional nature of copyrights in online works is a total conflict between the global nature of computer networks and the regional nature of traditional intellectual property rights.

(2) The consequences of damage caused by Internet infringement are more serious

Due to the rapidity of Internet communication, a literary work is often repeatedly infringed after being infringed on the Internet, resulting in corresponding consequences. The damage caused by the right holder is extremely serious. Compared with traditional copyright infringement, it affects a wider area and causes greater damage. Infringement will cause more serious damage in a shorter period of time. For example, in some online infringement disputes of literary works in recent years, there have been new types of infringement disputes caused by the defendant regularly playing other people's works through the computer network. The characteristic of this behavior is that it is not a point-to-point interactive communication behavior. It is a point-to-multipoint communication behavior. Internet users can only watch film and television works at regular intervals, but cannot watch them at the time they choose, nor can they affect the playback process in other ways. To a certain extent, this is no different from television broadcasting. Once infringement occurs, The consequences are disastrous.

(3) Online infringement of literary works is concealed

Due to the development of network technology, especially the development of link technology, online infringement of copyrights is highly concealed. Compared with the material manifestations of traditional copyright infringement, online copyright infringement often has non-material manifestations. Network links can be divided into external links and internal links. External links are also called ordinary links, which are links that directly link to the homepage (home page) of other websites. The object it links to is the homepage of the website, and the entire content of the linked website is displayed on the screen. Internal links, also known as deep links, are links to paginations that bypass the homepage of the website. The difference between it and external links is that the link mark stores a page in the linked website rather than the homepage of the website. This causes users to misjudge the ownership of the web page author and destroys the integrity of the website content. sex, weakening its propaganda and influence. This kind of linking method is likely to cause network link disputes in commercial websites. Compared with traditional infringement methods, this kind of infringement method of network linking is more covert and difficult to detect.

3. Exploration of countermeasures to solve the problem of Internet infringement of literary works

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

Our country implements automatic registration of works once they are created. The system that creates copyright. However, if the work is not signed, signed with a pseudonym, or signed electronically, these signature methods will be difficult to confirm the identity of the rights holder or can be easily changed, and will not be conducive to others obtaining the legal authorization of the real rights holder. In practice, As a result, many disputes occurred. It is recommended that the voluntary registration system for works be improved, that is, after the author completes the work, he can stamp the copyright mark and explain his identity; he can also submit the work to the relevant department for filing and obtain a registration certificate. This can be used as a preliminary basis for copyright in case of disputes. prove.

(2) Balance the protection and restriction of rights

On the one hand, society calls for strengthening the protection of the copyright of works, especially the copyright of works on the Internet, because the proliferation of online piracy has become a The main problem that threatens cultural and artistic creation; on the other hand, there is also the problem of excessive use of rights protection methods that is not conducive to the spread of culture and art. Therefore, a balance must be achieved between copyright protection and restrictions. On December 20, 2011, the Supreme People's Court issued the "Opinions on Several Issues Concerning Giving Full Play to the Role of Intellectual Property Trial Functions in Promoting the Development and Prosperity of Socialist Culture and Promoting Independent and Coordinated Economic Development", proposing that it is necessary to accurately grasp the rights holders and network service providers. To balance the interests between authors and the public, we must not only strengthen copyright protection in the network environment, but also pay attention to promoting information network technology innovation and business model development to ensure the interests of the public. The purpose of the opinions is to promote cultural prosperity and development, and the innovation of network technology and the development of business models are the basic driving forces for promoting great prosperity and development. Strengthening the protection of copyrights in the Internet environment is to safeguard the interests of right holders and objectively restrict the public's access to works and the price; while promoting the innovation of information network technology and the development of business models is beneficial to the public as a whole. Benefit.

(3) Improve copyright collective management and adjust the statutory compensation amount for copyright infringement

It is necessary to improve the copyright collective management mechanism and related authorization, licensing and equity payment mechanisms in order to Change the current problems of chaotic management institutions, opaque mechanisms, and inadequate income distribution. The current upper limit of statutory compensation of RMB 500,000 for copyright infringement is somewhat low. It is necessary to refer to the Patent Law and Trademark Law to increase the upper limit of compensation.

(4) Distinguish the responsibilities of providers and content service providers

Technical service providers purely provide information storage space or provide technical services such as search and link services. They do not The content provided does not undergo any editing or processing of the content provided by users, such as access services provided by China Telecom and China Unicom, as well as pure search or storage services. Technical service providers can apply the "safe harbor" principle, that is, the notice-and-removal principle. Their responsibility is to delete the content promptly after receiving notification from the rights holder. If they delete it promptly, they will not be liable for compensation.

Therefore, as long as the network technology provider does not commit intentional infringement, it can be exempted from liability. Content service providers not only provide a platform, but also edit and process the content and put the content online for netizens to browse or download. The content provided by content service providers is operated by themselves, and there is no exemption prerequisite for ignorance. Therefore, compared with network technology providers, the responsibility is heavier. The "safe harbor" principle does not apply. As long as you upload and publish unlicensed content, you will be liable. constitute infringement.

[References]

[1]Liu Xiaolan. Research on Internet Literature Copyright Protection Issues[J]. Modern Publishing, 2011, (05).

[ 2] Jin Leiyu. Enlightenment of the Baidu Internet infringement case on copyright protection at the current stage in my country [J]. China Copyright, 2011, (06).

[3] Ma Jiao. A brief analysis of the copyright of online document sharing platforms Liability for infringement [J]. Foreign Investment in China, 2011, (08).

Paper 4 on Internet Infringement

Analysis on the Identification of Internet Copyright Infringement

Abstract The development of digital technology has changed the way information is disseminated, giving rise to new things such as digital publishing and online copyright, and online copyright infringement has also emerged. However, there are many problems that need to be solved urgently on how to identify this behavior. This article focuses on the identification of Internet copyright infringement, starting from the definition of Internet copyright and infringement, analyzes the physical and evidence-level difficulties faced when identifying Internet copyright infringement, and proposes corresponding solutions.

Keywords Identification of Internet Copyright Infringement

1. Concept, characteristics, manifestations and characterization of Internet Copyright Infringement

(1) Internet Copyright Infringement The concept of Internet copyright is a new type of copyright in the context of the digital age. It emerged with the rise of digital publishing. Online copyright is also copyright, which refers to the rights that authors of intellectual works such as literature, music, movies, scientific works, software, pictures, designs, etc. have over their works on the Internet. Regarding Internet infringement, some scholars believe that it is the extension of infringement to the Internet and the network environment, resulting in Internet infringement. Some people also believe that network infringement refers to behaviors that infringe on the personal and property rights of others in the network environment, but does not include damage to network transmission equipment or facilities in real society. As a new type of infringement case, it is different from traditional infringement. Behavior. The author believes that online infringement refers to the behavior in which infringers use network information technology to infringe on the civil rights and interests of the country, collectives or individuals protected by laws and regulations in the Internet environment.

(2) Characteristics of online copyright infringement

1. Infringement is difficult to identify. Determining infringement must rely on evidence, and the digital information existing on the Internet is composed of binary discrete signals, which are not continuous. It is difficult to detect after modification or deletion, and it is also difficult to collect evidence. Therefore, information on the Internet must be used as evidence for identification. There are certain difficulties with infringement.

2. The subject of the infringement is difficult to determine. Ordinary netizens can choose their favorite name on the website to become their own netizen, but their true identity is unknown. Some users can also remain anonymous on the Internet, and it is impossible to find out the true identity of this user.

3. The consequences of infringement spread quickly. The global and real-time nature of the Internet makes the dissemination of online information more convenient, faster and more extensive. This also makes the consequences of infringement spread everywhere in a short period of time, but the rights holder cannot stop it in time.

4. The jurisdiction of the case is difficult to determine. Jurisdiction over torts usually applies to the law of the place where the defendant is located or the law of the place where the tort was committed. However, the Internet is a global special space. The places where the same infringement occurs are often far away or even beyond national borders. However, the Internet cases we have to solve are complicated and numerous, which undoubtedly poses difficult problems to our current jurisdiction regulations.

(3) Manifestations of online copyright infringement

1. Digitizing other people’s works without permission and publishing them on the Internet.

This kind of behavior is mainly to digitize unfinished or completed works and publish them to the public on the Internet without the permission of the right holder, which infringes the right holder's right to network information dissemination and publication rights. This type of behavior is more common on some free download websites for pictures, e-books, movies, etc.

2. Illegal reprinting.

This kind of behavior includes two situations: first, reposting works published by others on the Internet and stating that they cannot be reprinted to other networks; second, although the rights holder has not explicitly stated whether his work can be reprinted, but The perpetrator did not list the rights holder’s identity information when reprinting and did not pay fees to the rights holder. This type of behavior is more common in open online communication communities or portals such as forums and Weibo.

3. Infringement of web design rights.

This behavior includes two methods: one is to directly copy the source code of other people's web pages or make partial modifications based on this code; the other is to steal the design of other people's web pages or make partial modifications on this basis. The perpetrators of this type of behavior are mostly web designers.

4. Infringement of online trademark rights.

Internet trademarks are special trademarks that are digitized or redesigned by the rights holder to suit the Internet. Such trademarks are usually more complex than ordinary trademarks and may include text, pictures, sounds, animations and other elements at the same time. Infringement The behavior is often manifested in the use of similar designs to confuse the audience and is difficult to identify and judge.

5. Illegal link guidelines.

This kind of behavior includes two basic forms: one is the search engine illegal connection guide, some search websites directly connect other people’s websites to their own search libraries as part of their own; the other is ordinary websites that use other people’s website addresses Hidden within the page of one's own website, users do not know that they are browsing information from other websites when browsing relevant information.

6. Infringement of network domain name rights. There are two forms of this kind of behavior: one is the behavior of "malicious registration". When other institutions and companies have not registered domain names according to their trademarks, names, etc., they maliciously register them based on such information, and then sell them to these institutions and companies at a high price. Enterprises; the second is to use domain names similar to other website domain names to mislead users, increase the number of clicks on their own websites, and even conduct fraudulent activities.

2. Difficulties in the determination of online copyright infringement in my country

(1) Issues regarding the constituent elements of online copyright infringement

The current issues regarding the constituent elements of infringement The main point is that the constituent elements of a tort are the presence or absence of infringement, the result of the damage, whether there is a causal relationship between the first two items, and the subjective fault of the infringer, which is the so-called four elements theory. Only an act that satisfies the four elements at the same time can be called a tort. It is a tort; in addition, some scholars believe that the reasons for illegal obstruction should also be considered when determining infringement, that is, if there is a reason for illegal obstruction, then the behavior is not an infringement. The author believes that such division of constituent elements and consideration of reasons for rejection is to treat the identification of infringement and the identification of tort liability as equivalent.

The identification of infringement and the identification of tort liability have the same goal, that is, to ultimately complete the division of rights and obligations and restore justice, but they are different. The identification of infringement is the identification of The illegality of the behavior of the actor, the consideration of the damage results, whether there is a causal relationship, the subjective fault of the injurer, and the reasons for illegal obstruction all belong to the determination of tort liability. The determination of infringement is the prerequisite for the determination of tort liability, and the determination of tort liability is the next step in the determination of tort. They are two different stages.

(2) The issue of illegality of behavior

The issue of illegality of behavior has two aspects: one is that the behavior does exist, that is, the problem of determining the facts of the behavior; the other is the nature of the behavior itself The issue of illegality is to determine that the behavior infringes upon the objects clearly protected by the law. Once the object of online copyright protection is clarified, all inappropriate factual behaviors directed at this object can be determined as infringement. However, there are currently difficulties in both aspects.

Determining behavioral facts mainly involves determining the behavioral subjects and behavior patterns. The difficulty faced in this part comes from the particularity of network information. The particularity of network information makes it more difficult to identify behavioral facts. This is Some are discussed in detail in the next part of the article. In addition, my country's current legislation does not clearly define the scope of online copyright protection and the method of obtaining online copyright. This has resulted in a lack of protection for rights holders' creative achievements and made it more difficult to identify online copyright infringements.

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

Determining infringement must rely on evidence, and identifying network infringement mainly relies on network information, but the digital storage of network information The nature, ease of modification, etc. have posed new challenges to the traditional rules and standards of evidence certification, which has made it more difficult for judges to make determinations.

1. Internet information has had a great impact on the hearsay rule

With the ever-accelerating digitalization process, more and more Internet information has become evidence and entered into litigation. The producers or insiders of these network information will not appear in court to testify, and a lot of network information automatically generated by the system has also become evidence, such as consumption records, company financial statements, and system-generated logs, which should all be included in the evidence. beyond the scope of hearsay evidence, their admissibility requires more testing.

2. The standard for the admissibility of network information when determining infringement is unclear

When determining infringement, the admissibility of evidence is crucial, so it must be clear that the admissibility of network information At present, our country does not have clear legality standards and authenticity standards for network information, and the particularity of network information also requires a large amount of professional technology or specialized personnel in the certification process. Therefore, in many cases, there is no Judges are often reluctant to use online information when clear standards and certification are difficult, which makes it more difficult to identify online copyright infringements.

3. Suggestions for improving the identification of Internet copyright infringements

(1) Clarify the scope of Internet copyright protection and how to obtain it

Clarify the scope of Internet copyright protection and The acquisition method requires that the scope of protection be expanded on the current basis, and all inappropriate factual behaviors within this scope of protection can be deemed as infringements.

First of all, for a work to be protected by law, it must meet four requirements: first, it must be an intellectual achievement with innovative content; second, it must be a work in the fields of literature, art, science and technology ; The third is that it can be copied and is original; the fourth is that the work must not violate the prohibitive provisions of laws and regulations and public order and good customs. Therefore, as long as the above conditions are met, published works using binary technology means or unpublished works that embody the intellectual work of others and are published on the Internet should be protected by law, including the legal digital editing and processing of the original works. , directly create works and publish them on digital platforms, web design, domain names, etc. The method of obtaining is to publish it first, and the person who first publishes it on the Internet is the owner of the right and registers against a third party.

Secondly, if a work meets the above four requirements but has not yet been completed, is published on the Internet by the perpetrator without the creator's permission and is not attributed to the creator, or is used without the creator's permission, If a dispute occurs, the copyright of the published or used part of the work should belong to the creator, and the publisher or user's behavior is an infringement; if the work is published without the creator's permission, the published work is signed and belongs to the creator. The behavior it announced is still an infringement, but whether it bears responsibility falls within the scope of liability determination, and the creator's subsequent ratification can be considered.

(2) Determine the exceptions to the hearsay rule

Printouts of network information that can guarantee its authenticity and are not produced during the investigation process or for the purpose of litigation should be treated as hearsay Exceptions to the rule. This printout is only an external representation of a computer record, intended to enhance the readability of network information. The actual network information is a potential electronic record, not the printout itself.

(3) Determining the standards for the admissibility of network information in the identification of network copyright infringements

The admissibility of network information mainly includes three aspects: relevance, legality and authenticity. , Correlation is mainly the degree of correlation between network information and infringement, which is an easy problem to solve, so the difficult problem is authenticity and legality. The legality of network information is mainly reflected in its generation, transmission, storage, display, etc. Network information may infringe on other people's rights to freedom of expression and privacy in all aspects of it, especially the transmission and presentation. Authenticity refers to completeness and authenticity in form, while the computer system and network system on which network information relies are vulnerable to attack, and the network information itself is easily modified and difficult to leave traces.

Three conditions should be met for legality: first, the subject collecting network information must comply with legal provisions; second, the form of expression must comply with legal provisions; third, the collection procedure must be legal. For authenticity, direct determination and presumption can be used: when directly determining, as long as the completeness and authenticity of the network information can be judged through conventional means, its authenticity can be determined; when conventional methods cannot be used to determine, the presumption method can be used. That is, as long as it can be proven that the computer system and hardware on which the network information relies is reliable and operating normally, it can be presumed that the network information is flawless and its authenticity can be determined.