In the era of knowledge economy, due to the wide application of computer network technology and digital technology, people's intelligence and high-speed computing ability of computers converge and merge, creating new social productive forces, enriching a large number of activities such as e-commerce, and meeting people's social, shopping, learning, consumption, medical and other needs. Intellectual property rights are the most involved in e-commerce activities, and e-commerce activities are aimed at "invisible" the circulation of some commodities in the network environment.
The business activities of negotiating, signing contracts, ordering goods and finally obtaining goods on the computer network have caused new problems in intellectual property protection. It mainly includes copyright issues, patents, domain names and trademarks in e-commerce. In the e-commerce of network communication, the intangible sales of copyright products have been involved, which has caused new problems of copyright protection. In particular, new problems that are fundamentally different from traditional protection have emerged, such as the protection of trademarks and their commercial signs, the protection of goodwill, and the protection of commercial image. E-commerce under the network environment has had a great impact on China's copyright law and trademark law.
Like traditional business activities, there are also problems of intellectual property protection in e-commerce activities. However, the existing laws and regulations on electronic information and commercial trade in China do not cover all intellectual property protection in e-commerce. Imperfect legislation creates obstacles to commercial trade. People can neither accurately grasp the legal nature and effectiveness of providing information in non-traditional written form, nor fully believe in the security of e-commerce.
3. 1. 1 Internet copyright protection
The core content of copyright protection is to ensure that the copyright owner has control over the dissemination and use of the work. Under the condition of traditional communication technology, the rights of reproduction, distribution and broadcasting basically guarantee the control of copyright works by copyright owners. However, under the network environment, copyright owners are facing the serious threat of "out of control" of their works.
The copyright infringement on the Internet is mainly manifested in:
(1) Direct Infringement Copying, publishing, distributing, adapting, translating, playing, performing, exhibiting and shooting in any way without the permission of the author or other copyright owners constitutes direct infringement of copyright. In addition, the tort liability of Internet service providers due to their service providers' tort behavior and automatic copying of their computer systems in the process of providing services is still within the scope of debate and needs to be further clarified in legal provisions.
(2) Indirect infringement mainly refers to the tort liability of Internet service providers (ISP) and Internet owners for users' infringement. Regarding the problem of indirect tort liability of the network, the size of the responsibility that the service provider should bear is also under study.
3. 1.2 Patent Protection on the Internet
Network technology has also brought many problems to the patent field. For example, whether computer software can become the object of patent system protection; The extensiveness and openness of the Internet challenge the novelty of patents. In addition, the legal issues involved in electronic patent application, etc. , are all problems that need to be discussed and solved under the network environment.
(1) computer software patent protection
The laws of many countries have adopted some flexible practices in using copyright law to protect computer programs, and absorbed some contents of patent protection. However, different countries have different attitudes on whether to apply for patents directly on computer programs. According to the appendix to the Agreement on Trade-Related Aspects of Intellectual Property Rights, the thing to be patented is described as follows: "Any invention, whether it is a product or a program, can apply for a patent in any technical field as long as it is novel, creative and industrially practical." Obviously, it has become a trend that the patent system becomes a legal means to protect computer software.
At present, many people in the field of intellectual property theory believe that the two laws of patent and copyright should be combined to realize the real protection of software.
(2) The influence of Internet on patent law.
Patent law generally stipulates that the invention-creation granted a patent must be novel, and novelty is one of the essential elements for granting a patent for invention or utility model. The traditional patent law does not stipulate what principles should be adopted to disclose inventions and creations on the Internet. Therefore, it is worth discussing whether the inventions published on the widely open Internet are still novel.
(3) Electronic patent application.
3. 1.3 Domain names on the Internet
A domain name is the address of a computer connected to the Internet. The original intention of designing domain names is to facilitate computer networking and online communication. However, because it is easy to remember and use, it has been widely used as a commercial symbol. Commercial organizations have realized the great potential of websites as the basic means to develop e-commerce. Therefore, merchants try their best to use trademarks, trade names and other symbolic words of companies as domain names of their websites to attract original consumers and expand the popularity of online markets.
Although domain names have more and more commercial value, they lack the necessary contact and communication with intellectual property systems such as trademarks and trade names. Therefore, it is urgent to establish the connection between domain name and intellectual property system and reduce the conflict between them. However, the more fundamental solution is to "correct the name" of the domain name. If the domain name really has the value of intellectual property, we should consider giving it intellectual property status and legal protection. This not only solves the conflict between domain name and intellectual property, but also enriches the content of intellectual property.
3.2 the impact of these issues on the development of e-commerce
With the maturity of internet technology, electronic data exchange has gradually become the main economic and trade mode in 2 1 century. Although the trade volume of e-commerce in China is less than one tenth of that in the United States, the development speed of e-commerce in China is quite fast. In this virtual world, like the real world, there are also illegal crimes and opportunistic behaviors, which have also become an intellectual property protection issue in e-commerce and affected the development of e-commerce activities.
3.2. 1 Impact of domain name intellectual property protection on e-commerce
A domain name is the address of a computer connected to the Internet. The original intention of designing domain names is to facilitate the communication between computers and the Internet. However, it is widely used as a commercial symbol because it is easy to remember. Commercial organizations have realized the great potential of websites as the basic means to develop e-commerce, and tried their best to use trademarks, trade names and other symbolic words of companies as domain names of their websites to attract original consumers and expand the popularity of online markets. The domain name of a commercial organization is also widely used in advertisements as a sign that the commercial organization occupies a place on the Internet.
Therefore, the premise for a single manufacturer to participate in global e-commerce is to register domain names on the Internet. The technical characteristics of domain name system determine the uniqueness of domain name. Therefore, some people with ulterior motives have come up with the bad idea of registering other people's well-known trademarks, trade names or other signs as domain names and selling these domain names to their intellectual property owners at high prices.
In some cases, the registrant of a domain name has no intention of cybersquatting, but uses a domain name for his own reasons, and the domain name is accidentally the same as or similar to the registered trademark or trademark expressed by others in English letters, that is, the domain name is no less harmful to the development of e-commerce on the Internet than criminals. This behavior has been punished by law in the United States, Britain and other countries. Those cybersquatters who have registered dozens or hundreds of other people's well-known trademarks or trade names are forced to return the cybersquatters' domain names to the intellectual property owners.
The latter is purely a conflict of rights caused by domain names. To solve the dispute, we should first give the domain name its due intellectual property status and corresponding legal protection, and then formulate the legal rules on the relationship between domain name and registered trademark. In this way, the conflict between domain name and trademark is not difficult to solve. At present, there is no clear domestic or international intellectual property law to protect domain names. This "impossible" state will hinder the further development of global e-commerce.
3.2.2 Impact of Copyright Intellectual Property Protection on E-commerce
In China's copyright law, there is no corresponding legal provision for the digitization and network communication of works. This situation has changed the subject and object of works under the network environment, and the existence of information network works, multimedia works and derivative works produced by tools has brought suffering to the classification of works. This affects the identification of subject qualification in e-commerce activities.
Second, it is difficult to define the boundaries of individuals' rational use of works. Especially in the network environment, the separation of economic interests and work forms makes it difficult to draw a clear line between profit and non-profit.
Third, the protection of users' legitimate rights and interests is affected. Under the network environment, there are conditions and environments for users to passively obtain works, which is very likely to infringe on the legitimate rights and interests of users. Therefore, in order to protect the interests of all copyright owners and promote the development of e-commerce, the protection principles and key points of China's copyright law should be adjusted with the progress of computer network technology and application, and the adjustment efforts should be continuously increased.
3.2.3 The impact of the protection of technological achievements of e-commerce on e-commerce
Technological achievements are the creative intellectual achievements of innovators, including new technologies, new products, new processes and new materials. The technological achievements in e-commerce include not only goods traded through the Internet, but also innovative trading skills in the trading process. With the continuous development of information technology, there are more and more kinds of goods in e-commerce and trade skills emerge one after another. It is difficult to effectively protect all aspects of these technological achievements by copyright law alone. Therefore, it is necessary to explore this and find new protection methods.
(1) patent protection.
It is an effective way for innovators to enjoy patent monopoly and improve the value of technical information by applying for patents in China National Intellectual Property Administration, publishing their technological achievements and obtaining the protection of patent law. Because once the innovator obtains the exclusive right of technological achievements, the longer and wider the use, the higher its value (before the emergence of new alternative technologies, its value can be accumulated indefinitely), and the right holder can obtain extremely rich profits through the transfer of rights and the use license in addition to his own use.
(2) Protection of trade secrets.
In our country, according to Article 10 of People's Republic of China (PRC) Anti-Unfair Competition Law, a trade secret means "it is not known to the public, it can bring economic benefits to the obligee, and it is practical, and it becomes a trade secret only after the obligee takes confidentiality measures". In e-commerce, trade secrets include technical secrets and trade secrets, such as computer software, customer orders, cost accounting tables, accounting methods, market research reports, marketing strategies and logistics distribution processes. Trade secrets are of high value, which means that their present or future use will win the real or potential competitive advantage for the obligee.
Therefore, enterprises often take various measures to protect their own business secrets. Some enterprises may steal their opponents' business secrets by any means in order to save money or understand their opponents' situation. In order to protect the legitimate rights and interests of enterprises, many countries have stipulated the right of trade secrets to relieve the rights of innovators of technological achievements.
Under the condition of e-commerce, China must take corresponding measures to avoid the loss of interests.
5. 1 carry out the government e-commerce demonstration project to raise the awareness of intellectual property protection in e-commerce among the whole people.
Judging from the development status of e-commerce in China, although there are many fields and forms involved in e-commerce, there are great differences between industries and regions, the management level of enterprises is high or low, and the understanding of e-commerce is not uniform. Therefore, our government should properly carry out the necessary demonstration project of e-commerce, attach importance to the pilot project, emphasize publicity and guidance, gain experience on the basis of the pilot project, gradually popularize it, popularize the basic knowledge of e-commerce on the basis of publicity, raise the awareness of national e-commerce intellectual property protection, attract more enterprises or consumers to join the ranks of e-commerce, and guide them to effectively accumulate and protect intellectual property rights.
5.2 Strengthen the construction of information infrastructure and standardize the e-commerce network platform.
As an information service system, e-commerce is based on Internet technology. This open network platform makes the security protection of e-commerce particularly important, and the security protection of e-commerce is bound to involve the intellectual property rights of e-commerce. Therefore, the standardization of e-commerce platform is conducive to promoting the protection of intellectual property rights in e-commerce. In order to standardize the network platform of e-commerce, China must increase the investment in information infrastructure construction, and develop encryption technology, firewall technology and software and hardware technology products with information guarantee functions similar to IBM's "key container" to ensure the security and integrity of information in the transmission process.
5.3 Work closely with the international intellectual property community to explore a domain name system with China characteristics that meets international standards.
Only based on the national conditions, we can effectively protect the domain name right by modifying and perfecting the existing relevant laws in China. At present, no country has promulgated special laws and regulations on domain name protection. China's legislative countermeasures in this regard can learn from the legislative experience in other related fields and some common practices in the world, and make relevant provisions on various intellectual property laws related to domain name rights, thus providing legal basis for the protection of domain name rights.
5.4 Amend the Copyright Law of China to fully consider the new requirements of international copyright protection under e-commerce.
The existing copyright law in China is generally outdated, and even the description of copyright protection of network information is vague, which easily leads to infringement disputes and arbitrary trial results, and cannot meet the needs of copyright protection in e-commerce. The existing provisions on "reproduction", "fair use" and "copyright protection period" in China's Copyright Law need to be revised or added according to the actual situation in China and fully considering the new requirements of international copyright protection in e-commerce.