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. It enriches a large number of activities such as e-commerce and meets people's social, shopping, learning, consumption, medical and other needs. E-commerce activity is to make the circulation of some commodities "invisible" under 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. Because of this, the issue of e-commerce will attract WIPO's great attention.
Key words: e-commerce, digital products, intellectual property, infringement, legal protection.
E-commerce relies on a brand-new means of computer and electronic data communication, namely the Internet. Internet technology poses new challenges to the object of copyright protection and the connotation of copyright rights, and also brings new problems to the determination of copyright infringement: the integration of intellectual property rights and international, copyright law and network copyright protection, the conflict between domain name registration and trademark rights, legal issues in e-commerce, and the limitation of copyright law and "reproduction right".
Independent intellectual property rights are in line with international standards. With the advent of the era of knowledge economy, intellectual property protection is facing brand-new problems, which mainly focus on the application of computer networks. It is precisely because of the rapid development of computer network that the demand for data and information has a strong conflict with the characteristics of intellectual property rights. One of the most prominent characteristics of intellectual property rights is "exclusiveness"; The information that should be protected by intellectual property rights on the internet is open and public, and it is also difficult to be controlled by the obligee. "Regionality" is another characteristic of intellectual property rights, while the characteristic of network communication is "borderless".
At present, in order to solve these conflicts, most countries in the world advocate further strengthening the protection of "exclusivity" of intellectual property rights by concluding international conventions. 1996 12 In Geneva, the WIPO Copyright Treaty and the WIPO Performances and Records Treaty concluded under the auspices of WIPO added new copyright protection rights to the network environment, and explained the extension of existing rights to digital applications. In terms of trademark protection, most countries take special protection for well-known trademarks from goods and services; In order to adapt to the trend of strengthening trademark exclusivity. In practice, the occurrence of network infringement is often that once the infringing copy is online, any place in the world may become the place where the infringement occurs; Therefore, it is impossible to try to limit the boundlessness of network transmission. In fact, most countries and regions are taking measures to weaken the regionality of intellectual property rights and accelerate the international "integration" process of intellectual property laws in various countries to solve this contradiction. However, the international "integration" of intellectual property law needs a * * * standard, and the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS Agreement) concluded by the World Trade Organization is an example. In the knowledge economy, it is an irresistible trend to strengthen the exclusiveness of intellectual property rights and the "integration" of international intellectual property law; This is a major challenge for developing countries in the world. As a big developing country, China must study its own countermeasures. We should pay close attention to perfecting and perfecting the legal protection system of intellectual property rights, strive to adapt to the process of internationalization of intellectual property protection, and ensure that the Chinese nation is invincible in the international competition in the new century.
Copyright law and network copyright protection. Intellectual property rights are the most involved in e-commerce activities. 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. Therefore, under the network environment, e-commerce has had a great impact on China's copyright law and trademark law.
In China's copyright law, there are no corresponding legal provisions for the digitization of works and the network dissemination of works. This situation has changed the subject and object of works under the network environment. It is difficult to identify the copyright subject of open works, and the existence of information network works, multimedia works and derivative works produced by tools makes it difficult to classify works. This affects the identification of subject qualification in e-commerce activities. Secondly, the publishing and communication behavior has been expanded. In the network environment, the traditional publishing link no longer exists, but is played by information content providers, network service providers and businesses engaged in e-commerce activities; Due to the uncertainty of the release area, it is difficult to determine the area; Therefore, it is necessary to study the rights and obligations of network communication service providers, information content providers and e-commerce merchants. Third, 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. Fourth, 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 parties and promote the development of e-commerce, the protection principles and key points of China's copyright law should be adjusted; With the development of computer network technology and application, the adjustment is constantly increasing.
Conflict between domain name registration and trademark right. China's Trademark Law only stipulates that the protected marks are "words, graphics or their combinations", but does not protect the dynamic process of appearing on the Internet as trademarks. Commercial activities under the network environment have made people feel that identifying trademarks with "visual perception" is more suitable for the development of commercial activities than identifying trademarks with "words and patterns". At present, the most prominent problem in China is the conflict between "domain name registration" and trademark rights under the network environment. Although the State Council issued the "Provisional Regulations on Internet Domain Name Registration in China" in May 1997, it only stipulated that "you may not apply for domain name registration with a registered trademark that does not belong to you"; There are no trademarks and trade names that prohibit cybersquatting. Therefore, the "domain name" has actually become a part of goodwill, and even a corporate name, which is protected and traded as an intangible asset. At present, some international treaties only stipulate that the owner of "international well-known trademarks" has the right to prohibit others from cybersquatting with their own trademarks; One of the focuses of the contradiction between non-well-known trademarks, trade names and "domain names" is the procedure of right generation. This is because most trademark rights are registered with the approval of the official management department; Trade name right is based on actual use; Domain name exclusive rights are mostly registered by unofficial organizations. Because there is no technical solution to the conflict, it is necessary to study and solve the conflict between "domain name" and prior trademark right and prior trade name right in the next century.
Legal issues of e-commerce. As a new business operation mode, e-commerce will become the mainstream of international business in 2 1 century. With the rapid development of internationalization of intellectual property protection, countries all over the world pay more and more attention to solving legal problems under the environment of e-commerce. The first is to solve the legal status problem on the Internet. In e-commerce, the electronic contract signed by both parties must have legal effect, so that both parties to the contract are bound by law and their interests are protected. Therefore, in the implementation of China's contract law, we should pay attention to the research on legal disputes such as signing, undertaking performance, alteration and transfer, termination and breach of contract of electronic contracts, so as to improve and modify them after a period of legal practice and make electronic contracts more legally effective. Secondly, invest a lot of money and concentrate on amending China's existing intellectual property laws, especially the copyright law and trademark law.
Limitation of Copyright Law and "Reproduction Right" Because digitized works have the characteristics of "reproducibility" and "originality", the digitization of existing works should belong to an exclusive right of the copyright owner and should be protected by copyright law. Digitizing a work itself is a kind of "copying" behavior, which should be restricted by the "copying right". Therefore, Item (1) of Article 10 of the Amendment (Draft) of the Copyright Law should be amended to read: "Copying right, that is, the right to make one or more copies of a work by digital or non-digital means such as printing, copying, copying, rubbing, audio recording, video recording, copying and remaking conversion".
The network communication of works is neither the distribution nor the play of works, but a brand-new way of communication of works. Therefore, in order to protect the interests of copyright owners, uploading works to the Internet and distributing them to the public means using works. It belongs to the exclusive right of the copyright owner and should be protected by the copyright law. Because the protection of tangible knowledge products in China is not enough, the protection of intellectual property rights of digital products e-commerce is even more lacking. This is very unfavorable to the development of e-commerce in China. Therefore, to develop digital products e-commerce in China, we must solve two problems: first, what products can be digitized and suitable for all-digital e-commerce; The second is how to protect these digital products and prevent "hitchhiking". The intellectual property system provides the best solution to these two problems. In the digital product e-commerce environment, intellectual property and e-commerce are more closely linked, and there is an interactive relationship between them. The intangible nature of intellectual property enables intellectual products with intellectual property rights to be transformed into digital products as soon as possible. However, digital products are indestructible and reproducible, which makes the development of digital products e-commerce inseparable from the protection of intellectual property rights. China should create an environment to promote the development of e-commerce as soon as possible. On the one hand, the economic environment, as soon as possible to promote the transformation of knowledge products to digital products, so that e-commerce has more tradable products; On the other hand, it is the legal environment of intellectual property rights, and a perfect intellectual property system for protecting digital products is established.