Nowadays, the Internet is sweeping the world, exerting great potential and having more and more commercial value. At the same time, it provides a brand-new opportunity for the utilization and wide dissemination of intellectual property rights, and the rights and interests of obligees may be widely expanded in virtual space. However, the unlimited replication of the Internet, global communication and unpredictable interaction have really shocked the intellectual property system, and the protection of online intellectual property rights has been put on the agenda.

First, network copyright protection

There are many problems involved in network copyright, but they mainly include the following aspects: infringing the copyright of traditional works in the form of network; Infringe the copyright of online works in traditional form; Copyright disputes between works in network form. I will discuss it from the above three aspects in the following.

1. Infringe the copyright of traditional works in the form of network

With the rapid development of the network, a large number of works are changing from traditional forms (mainly in the form of paper, including audio and video) to online forms and spreading them. In this process, there will inevitably be rights conflicts and even disputes between the copyright owners of works, the neighboring owners of traditional forms and the communicators of online forms. Among them, the outstanding problems are

(1) the problem that traditional works are digitized

The so-called digitization refers to inputting the information such as characters, values, graphics, images and sounds of traditional works into a computer system and converting them into digital signals, that is, binary codes consisting of and 1. At present, domestic law scholars generally tend to think that digitizing works belongs to the exclusive right granted to copyright owners by the current copyright law, but there are different opinions on which right this behavior belongs to in copyright. I'm more in favor of reducing the digitization of works to copying behavior. Because the digitalization of works only changes the carrier of the existence of works and does not produce new creativity, that is to say, no new works are produced, therefore, digitizing works is a kind of copying behavior.

in some developed countries and regions, the digitization of works is clearly defined as the copying behavior. The fifth item of Article 1 of the revised Copyright Law of China at the end of 2 stipulates: "The right of reproduction means the act of making one or more copies of a work in digital or non-digital ways such as printing, copying, copying, rubbing, recording, video recording, copying and remaking." The revised draft clearly includes "digitalization" in the category of copying behavior. When the revised Copyright Law is promulgated, we can say that the nature of "digitalization" has been basically solved in China.

(2) The problem of digital works

What is the legal nature of works' online communication to the public? Some scholars think this is a kind of "distribution" behavior, while others think it is a kind of "playing" behavior similar to broadcasting. The following are discussed separately.

Item 5 of Article 5 of China's Regulations on the Implementation of Copyright Law stipulates: "Distribution refers to providing a certain number of copies of works to the public by selling or renting to meet the reasonable needs of the public." After the work is online, users can download it and save it in their own hard disk, floppy disk or other tangible media, which is of course a copying behavior. But in most cases, users just browse online works without downloading them, which is just a kind of "temporary copying" behavior. In our country, it is generally believed that temporary copying does not copy a work on a tangible carrier, thus excluding it from copying. In addition, the online work does not lead to "exhaustion of rights at one time", which is also fundamentally different from the distribution behavior. Therefore, the dissemination of works to the public on the Internet does not belong to distribution.

Item 3 of Article 5 of China's Regulations on the Implementation of Copyright Law stipulates: "Broadcasting refers to the dissemination of works through radio waves and cable television systems." In other words, the act of broadcasting is only a kind of dissemination of works, and the public has not got a copy of the works. Of course, surfing the internet is also a kind of communication behavior, but it is obviously different from the traditional communication behavior. First of all, the transmission means used in traditional broadcasting behavior are often radio waves or cable TV systems, while the transmission means used for works online is the Internet; Secondly, the transmission content of the online behavior of the work excludes the live performance and is limited to the behavior of transmitting information to the public by means of devices; Thirdly, the traditional broadcast behavior is a "one-to-multipoint" mode of communication, that is to say, the information source is one point, while the receiver is multipoint, the communication is unidirectional, and the public receives passively. In addition to the "one-to-multipoint" mode, the transmission of works on the network can also adopt a "one-to-one" mode, that is, the so-called "on-demand service", and the public actively accesses the network. I also agree that the online dissemination of works should be defined as "playing", and as one of the ways to use works, the right to use them should be protected by the copyright.

(3) Legal liability of network service providers

A network service provider refers to the main body that provides intermediary services for the publication, transmission, search and acquisition of information on the Internet. Articles 4 to 8 of the Judicial Interpretation on the Trial of Computer Network Copyright Disputes, which was adopted by the Judicial Committee of the Supreme People's Court in November 2, stipulate the legal responsibilities of network service providers and related issues: make clear the fault liability of network service providers for copyright infringement as far as possible, so as not to easily assume excessive responsibilities, so as to facilitate the healthy development of the network industry; At the same time, it also restricts its behavior and makes it clear under what circumstances it should bear tort liability, so that network service providers can self-discipline and protect themselves and safeguard the legitimate rights and interests of copyright owners. The judicial interpretation clearly stipulates the responsibilities of network service providers:

First, because the network service providers who provide online services have no editing control ability and no obligation to monitor the network information, they have no subjective fault in infringing acts committed by others on the network, and they are not liable according to Article 16 of the General Principles of Civil Law, and the legal liability for infringement should be borne by the actor himself;

Second, if an Internet service provider participates in the implementation of copyright infringement through the Internet, or instigates copyright infringement through the Internet, according to the provisions of Article 13 of the General Principles of the Civil Law, it belongs to the same infringement;

Thirdly, Internet service providers who provide content services have the ability to edit and control network information, and they have the obligation to take measures such as removing infringing content after infringement occurs or after being warned by the copyright owner with evidence. If the network service provider violates the above obligations, subjectively bears the fault and objectively commits the tort of omission, according to the provisions of the General Principles of the Civil Law, it constitutes the same infringement as the actor and shall bear joint and several liability;

fourthly, it is a legal act for the Internet service provider to take measures such as removing infringing content at the request of the copyright owner to stop the infringement, and should not be liable for breach of contract to the accused infringer.

2. Infringe the copyright of the works in the form of network in the traditional way

The works in the form of network are "traditional", and in this process, there will inevitably be rights conflicts and disputes between the authors of the works, the network communicators and the neighboring rights holders in the traditional form. Among them, the outstanding problems are: the "copyright" of "digital" works; Spiritual rights in the network environment; On the limitation of rights in the network environment. For the first question, it is actually very simple. The Internet is only a new technical means for the dissemination of works, and it cannot deny the copyright of works. As for the second question, there are opinions on restricting the protection of spiritual rights and strengthening the protection of spiritual rights. Here, I want to focus on the issue of rights restriction in the network environment.

in essence, "restriction of rights" refers to some acts that should have infringed the rights of copyright owners, but because the law regards these acts as "exceptions" of infringement, they are no longer infringement. It mainly includes "fair use" system and "legal permission" system.

(1) Fair use

Fair use means: "What was originally the exclusive domain of the copyright owner is used (without permission) and should be an infringement. However, because the law has drawn a' reasonable scope' on the conditions and/or methods of use, it has ruled out the determination of the infringement of this act. " In the case of fair use, users do not need to obtain the permission of the copyright owner, nor do they have to pay the license fee. It can be seen that this kind of regulation has a great influence on the interests of copyright owners, and it is necessary to analyze and study according to the actual situation before making a regulation that basically balances the interests of all parties.

article 9, paragraph 2, of the Berne convention establishes three criteria that must be met for fair use: 1) it belongs to special circumstances; 2) It does not conflict with the normal use of the work; 3) Not excessively damaging the legitimate interests of the copyright owner. This is called the "three-step test standard", which is the standard to determine whether an act belongs to fair use. It can be considered that this standard is still applicable as a criterion for judging fair use in the network environment.

1, online teaching and scientific research

Item 6 of Article 22 of China's Copyright Law stipulates: "To translate or copy a few published works for school classroom teaching or scientific research for teaching or scientific research, but not for publication and distribution" is a reasonable use. The use of these works in the network environment should also belong to the scope of fair use.

2, Digital Library

In the network environment, there is no difference between the electronic copy of the library's collection and the copy made in the traditional environment. Therefore, this behavior should still be included in the scope of reasonable use under the conditions of meeting the requirements of the current copyright law on library use.

3, for the commercial use of people with visual or hearing impairment.

(2) Legal license

Paragraph 2 of Article 32 of China's Copyright Law stipulates: "After the publication of a work, other newspapers and periodicals may reprint it or publish it as abstracts and materials, except that the copyright owner declares that it is not allowed to reprint or extract it, but the remuneration shall be paid to the copyright owner in accordance with the regulations." This is a "legal license" system and a unique copyright legal system in China. In this case, the "permission right" of the copyright owner of the published work is gone, leaving only the "right to receive remuneration", so it is also a right restriction.

after comprehensively considering the current situation of using works on the internet and balancing the social public benefits, Article 3 of China's Judicial Interpretation on the Trial of Computer Network Copyright Disputes stipulates that works that have been published in newspapers or spread on the Internet shall not be reproduced or excerpted by the website, except for the statement of the copyright owner or the statement that the network service provider of the work is entrusted by the copyright owner, so long as the remuneration is paid and the source is indicated, it is not enough to constitute infringement.

3. Copyright disputes between works in network form

Works in network form are quite different from those in traditional form in technology and expression. Traditional works are often "flat", while network works are often three-dimensional, showing strong hierarchical and connected characteristics; Traditional forms of works often show the characteristics of overall consistency, while network forms of works retain this characteristic, they also highlight the characteristics of relative independence of constituent elements. The specific manifestations are: the copyright of web pages; Framed technology and deep link problem; Protection of network database. The following talk focuses on the copyright of web pages.

At present, Internet service companies believe that the most prominent phenomenon of infringing intellectual property rights on the Internet is that plagiarism is very common. Copyright protection of web pages has become an important issue in the intellectual property protection of network service companies.

Web pages are displayed on the screen when surfing the Internet. Only beautiful, elegant, creative and friendly pages can attract people, thus increasing the number of visitors to the website. A web page consists of four parts: layout, which refers to the layout arrangement of web page content; Information refers to the specific content on the web page; Design refers to specific art design, such as small icons in front of column names, geometric patterns that divide the contents of various parts, etc. Update refers to the method and speed of updating web pages. Because web pages have the characteristics of originality, they should be protected by copyright. But there are both opinions and differences on what to protect. There is no objection that the information and design of the webpage should be protected by copyright. Different opinions mainly focus on the layout of the home page. The layout of the home page refers to the overall design effect of the home page, mainly the layout of the content, which is reflected in the position of logo advertisements and banner advertisements on the web page, the position of search engines and links, the layout of column titles, and the collocation of colors. In fact, this problem can be solved as long as we firmly grasp the standard that works protected by copyright must be original.

second, the protection of network trademark rights

1, the conflict between domain name and trademark

Domain name, in English, is a tool for accessing and using web pages on the Internet. From the most basic function, domain name is to facilitate users to remember and query the website and determine the "address" of the website online. Just like the names of natural persons and legal persons in the real society, it has become the only symbol that can distinguish different commercial organizations or other institutions in the network virtual society (domain name is the name of the commercial organization or other institution applying for use on the Internet, which is granted to the applicant by the domain name registration authority). As for the question of whether a domain name has intellectual property rights, since it is the only recognizable symbol on the Internet, it has a significant distinguishing function and is closely related to the business reputation or other reputations of users, it should be protected by intellectual property rights.

(1) Forms of conflict

The conflict between domain name and trademark mainly has the following forms:

a, the second-level domain name is the same as the registered trademark of others. The same trademark is owned by different commercial organizations, and only one person can register the domain name. Whoever registers first will get the registered domain name. This will cause the domain name to be the same as the registered trademark of others. In this case, because both parties have the exclusive right to use registered trademarks, it cannot be considered that domain name registration constitutes trademark infringement. Another situation is that they do not have the exclusive right to use a trademark, deliberately apply for a registered domain name for a registered trademark of others, and try to sell it to the trademark owner at a high price, that is, "malicious cybersquatting". Many large global companies have had similar experiences.

b, the second-level domain name is the same as or similar to the trademark of others. The domain name registered by the domain name applicant is the same as or similar to other people's trademarks. Generally, there is subjective intention in this situation. There is commercial competition between the two parties, and one party has the purpose of slandering and making fun of the other party through the domain name.

c, the third-level domain name is the same as the trademark of others. There are many commercial organizations or other institutions, because of the large number of computers used internally, there are many third-level domain names, and some domain names will be the same or similar to others' registered trademarks, such as in universities and other educational organizations, this phenomenon is more prominent.

d, the Internet user's identification symbol is the same as or similar to other people's trademarks.

(2) Solutions to conflicts

Domain names have identification function and should be considered as one of the representative symbols of commercial organizations. I think that the act of registering a well-known trademark as a domain name may completely cause confusion among Internet users, and it should be regarded as trademark infringement, which is also the embodiment of the principle of expanding the protection of well-known trademarks. The act of registering a poorly known trademark as a domain name can be solved by unfair competition law.

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