Otherwise, the debate will be very intense.
Our main statements and arguments:
1. The popularization of network technology is beneficial to copyright protection, but the current network environment is immature and the management is not perfect.
Don't talk to your opponents about reality, or you can't beat them. They will cite many real-life examples.
2. Generally, articles uploaded online are allowed to be reproduced or modified by default, since they are uploaded online.
Seriously, I personally think this debate is not good. There is a lot of talk outside, as if the network is not good. The law also stipulates that digital works are copyrighted, but they are easily infringed. The network mechanism is not perfect, so you must grasp the word "development".
Some thoughts on the legal protection of network copyright
Ye Xiaohui, School of Humanities, Jinling Institute of Technology
Abstract: With the rapid development of China's high technology and the rapid popularization of the Internet, the legal issues under the network environment have become increasingly prominent, among which the network copyright issue has become the focus of the whole society. This paper attempts to put forward some thoughts on several legal protection issues of network copyright under the background of the lagging legislation of network copyright in China, according to the current copyright law in China, in order to really promote the healthy development of network information industry.
[Keywords:]: network copyright owner network environment network works
With the development and popularization of network technology and computer technology, the network is infiltrating into all aspects of our work, study and life with amazing development speed and extensive influence, so the legal problems under the network environment are increasingly prominent, among which the network copyright problem has become the focus of the whole society, because it also involves the impact on the copyright system established under the traditional media form, and the copyright problem under the network environment has aroused serious research and thinking in the legal field. Under the background of the lagging legislation of network copyright in China, this paper tries to express some superficial views on several legal issues related to network copyright according to the current copyright law in China, in order to seek advice from legal colleagues.
First, about online copyright.
The fifth item of Article 10 of China's Copyright Law clearly stipulates that the copyright owner has the right to use the work. The right to use includes the right to copy, play and distribute works. The Supreme People's Court today issued an explanation on several issues concerning the application of law in the trial of cases involving computer network copyright disputes. "Article 2 The works protected by the Copyright Law include the digital forms of various works specified in Article 3 of the Copyright Law. Other intellectual creations that cannot fall within the scope of works listed in Article 3 of the Copyright Law under the network environment, but are original in the fields of literature, art and science and can be reproduced in some tangible form. " Therefore, the copyright of online works is a civil right enjoyed by the copyright owner for his literary, artistic and scientific works, including personal rights and property rights.
The author's personal right of online works is an inseparable right from the person and has no direct economic benefits. It embodies the author's style, accomplishment, thought and fame, and the personal right of the work is also called spiritual right. Because of the particularity of the carrier of online works, online works are easily changed by other netizens who do not enjoy the copyright of the works, which leads to the confusion of the ownership of rights and a large number of infringement incidents under the network environment, making it the focus of attention.
The copyright property right of online works refers to the right of the copyright owner to use the works by means of copying, performance, distribution, translation and annotation, and the right to allow others to use the works in the above ways and get paid, which is a kind of compensation for the author's labor. A new situation has emerged on the Internet, that is, the integration of copyright and neighboring rights. On the internet, communicators can no longer appear as passive and single identities. As long as any work is uploaded to the internet, it will produce automatic dissemination results, and others can copy, buy and receive it, so that the author's property rights will be lost. The legal result of the communicator's direct communication is the integration of copyright and neighboring rights, that is, the communicator directly realizes the right to publish, distribute, broadcast and indirectly perform. Among the rights of communicators, the content of neighboring rights is integrated, which enriches the copyright, performance rights and broadcasting rights of communicators.
Second, the status quo of the main body of online copyright infringement cases
(1) The Internet infringes the property right of the copyright of traditional media works, that is, the right to use the works by copying, performing, distributing, translating and annotating, and the right to allow others to use the works in the above ways and get paid.
Infringement of copyright under the network environment and according to the provisions of Article 22 of China's Copyright Law, except for some copies (for users to browse, study and study, etc.). ) that is, the copyright owner's authorization is not needed, and the reproduction of a work must be authorized by the copyright owner, otherwise it will be regarded as infringement of the copyright owner's rights. Intellectual property infringement under the network environment is an extension of traditional intellectual property infringement on the network media. In recent years, copyright cases occur frequently under the network environment. Many copyright owners have no idea when their legitimate rights and interests are violated because of their weak legal consciousness, while a few people of insight take up legal weapons to seek justice for themselves.
(2) The right of signature is one of the personal rights of non-copyright owners who infringe the copyright of online works.
Compared with the works published in newspapers, the works on the Internet only have different media. The former is spread through traditional paper media, while the latter is spread through new media-Internet. The two are essentially the same. "Downloading" online works from the Internet, like publishing works from other newspapers and periodicals, should be regarded as "reprinting", and the legitimate rights of copyright owners should be protected according to Article 32 of the Copyright Law. It is understood that many newspapers are using online works for free, and often do not give the original author's name. For example, in September 1999 and 17, a newspaper in Nanjing published an article by film director Zhang Yimou in memory of Japanese movie master Kurosawa. The author of this article is Zhang Yimou, whose original paper media is Time magazine. But when the newspaper was published, it was signed "Xin Lang". No matter whether the newspaper sent money to Zhang Yimou or not, the signature alone has violated the author's right of authorship.
(3) Infringement of webpage copyright is the infringement of network to network.
This kind of infringement is mainly manifested in the infringement of the copyright of information resources of other websites. This kind of infringement is very common because of its technical convenience, and it has become the main part of infringing the copyright of online works. In particular, some commercial websites lack information resources and extract a large amount of online information from news media without authorization, which has attracted the attention of many online media. 65438+1In mid-April, 1999, led by Xinhua News Agency, People's Daily, China Central Television and China Youth Daily, 23 influential domestic online media gathered in Beijing for the first time, and adopted the China Convention on Online Media in principle, calling on online media to fully respect each other's information and intellectual property rights; Call on the whole society to respect network information property rights and intellectual property rights, and resolutely oppose and resist any related infringement; Each convention unit solemnly agrees that any other website that does not belong to this convention should be authorized to quote the information of the convention unit and pay the corresponding fees. When using it, either indicate the source or establish a link; All online media, regardless of their specifications and strength, are equal before property rights.
(4) Non-copyright owners download or reprint network works without authorization.
As a means of mass media, the network has the right to enjoy resources, but this right has preconditions. For example, political articles, commentaries, theoretical articles and other works published on the website are all created by the author's own labor, and the right to publish and reprint should belong to the author. However, the actual situation is that once the works are published, some websites and media will ignore the announcements and warnings of the original works websites, and ignore the copyright of the author's works, leading to infringement. Its main manifestations are: first, unauthorized reprinting and use of works; After some works are published on a website, they will be reprinted and published by several or more websites, newspapers and other media without telling the original author, so that the original author has no right to know, let alone have property rights to the works; The second is not to pay the corresponding remuneration. The author's contribution to the website is a voluntary agreement, and no remuneration is paid. However, some websites that pay remuneration only pay remuneration to the authors who have contributed to their websites, and do not pay remuneration to the works reprinted by them, so that the authors' labor creation rights cannot be rewarded as they deserve; Third, some works are often misused or even copied. There is a common rule in general websites: when reprinting works, the source must be indicated, but often a work will be reprinted by many websites after it is published on one website, and the source is confusing, and some do not indicate the source; Some people are eager for quick success and instant benefit, openly copying the author's works, and some even change the author's name without changing the title, and publish them publicly on websites (not forums of various websites) or newspapers and other media, which seriously infringes the copyright of the author's works.
Traditionally, a work is published in a newspaper, and other newspapers can reprint it, unless the copyright owner declares that it is not allowed to reprint or extract it. This is the legal permission: that is, under the circumstances stipulated by law, you can use a copyrighted work without the permission of the copyright owner, but you should pay the copyright owner and indicate the author's name and the title of the work. Users who are allowed to reprint works on the internet should also pay remuneration; When a work is reused, the source should be indicated. For works on the internet, as long as the right holder simply indicates "Reprinting is forbidden" when his works are published, he needs the permission of the right holder. Otherwise, the copyright of online works will be infringed.
As a result, the infringement of online works has developed from written works to software, music, movies and other works, and the protection of online copyright itself has become a problem that cannot be ignored. If we don't pay attention to this point, our efforts to crack down on infringement of intellectual property rights in the tangible market will fail to a certain extent, we will indulge in online piracy, and we will also let the call for "prosperous cultural creation" fail, because the slightly smarter infringers will move to the Internet with lower infringement costs. If left unchecked for a long time, it will bring down the software industry, audio-visual industry and film and television industry, which is ultimately not conducive to the development of the national economy and the public's access to excellent cultural products. The author believes that it is urgent to strengthen the protection of online copyright.
Thirdly, some thoughts on the legal protection of network copyright,
(A) to strengthen the protection of personal rights of online works
Although the protection of rights in the copyright law is basically applicable to the network environment, it is necessary to emphasize the protection of personal rights in the network environment in view of the characteristics of the network. Someone once said that the network will become the "terminator" of the author's personal rights. On the internet, everyone has the ability to be an author, publisher and infringer at the same time. In the network environment, individual rights are challenged as never before, and everyone can easily and seamlessly change other people's works and spread them around the world. Therefore, under the network environment, the personal rights of authors and performers need to be effectively protected by law, and it is clearly stipulated that pseudonyms and anonymous works protected by personal rights on the network are not protected by law. This is not only for the benefit of authors and performers, but also for the benefit of the public. Therefore, the more important purpose of protecting the author's personal rights under the network environment is to ensure that the public can obtain true and reliable information.
The author believes that because the personal rights of online works are influenced by the new communication environment, it is not the best choice to emphasize the improvement of protection, which may also affect the development of the Internet and hinder the dissemination of works and the circulation of copyright products. Therefore, it is necessary to keep the protection of personal rights within appropriate limits, and it is reasonable to allow authors to give up personal rights in the special environment of the network, with the aim of reducing the obstacles to the circulation of copyright products in the market and making personal rights meet the needs of the market economy.
(B) to speed up the legislative thinking of network copyright protection
In order to promote the healthy development of the network, network legislation should be not only mandatory by general laws, but also inspiring. In legislation, we should fully consider the particularity of the network environment, and the network information spreads quickly and covers a large area. For example, our own works published on the website should be different from those published in traditional media. If the control of reprinting other people's works is too strict, it will inevitably affect the prosperity of network culture. The purpose of legal protection is to encourage the spread and prosperity of creation, and to protect and promote the healthy development of Internet industry and copyright. It is an urgent problem for the healthy development of network culture and network economy that the state endows civil subjects with the copyright of network intellectual property rights and related spiritual products through legislation, and clarifies the scope of infringement, behavior types, compensation standards and legal responsibilities of infringing subjects. Without the legislation of network copyright, there will be no legal form of intellectual property rights, and there will be no legal status of its creators and other rights holders. Therefore, it is urgent to establish and constantly improve the legal protection system of copyright, including online copyright. As a frontier subject of copyright law, network copyright protection has many problems that need further discussion and research. Although China's first administrative regulation on network copyright, Administrative Protection Measures for Network Copyright, has made China's network copyright protection reach the international leading level, from a legal point of view, the Measures belong to the category of departmental regulations. The effect is not as good as that of the Constitution, laws and administrative regulations. In the long run, it is more important to speed up the revision, perfection and formulation of the Copyright Law in practice, such as the Regulations on the Protection of Information Network Communication Rights or the Regulations on the Protection of Internet Copyright.
(3) Thoughts on strengthening the management of network industry according to law and raising citizens' awareness of legal protection.
Strengthen the management of the network industry and increase the intensity of network monitoring. First of all, we should fully understand the importance and urgency of managing enterprises according to law and the new situation of market competition after China's entry into WTO, and fully realize that the key to nip in the bud is that the network information industry attaches importance to operating according to law from top to bottom and insists on standardizing all activities of the network information industry according to law; Constantly improve the legal quality and moral level of knowing the law, abiding by the law and using it. The network industry should establish and improve the responsibility system for managing intellectual property rights according to law, clarify the division of responsibilities, and strengthen the management of all aspects of the network industry. Legal affairs, market operation, website management, value-added services, corporate image publicity and other departments are all responsible units for copyright management. It is necessary to establish a relevant responsibility assessment system and investigate the corresponding responsibilities for violations of laws and regulations that infringe on corporate image.
Strengthen legal education on network, computer security and copyright protection through popularizing law. It is necessary to organize network users to seriously study the laws and regulations related to intellectual property rights and get familiar with the relevant international conventions, so that people can clarify their vague consciousness, not only enhance their awareness of self-protection, but also establish a "firewall" ideologically, and also strengthen self-restraint and reduce the occurrence of copyright infringement incidents of online works.
To sum up, the development of network environment and network technology has brought great challenges to the protection of network copyright. Therefore, the author thinks that the legal protection of copyright of network works needs further study, and how to prevent the protection of intellectual property rights including copyright from becoming a factor hindering the development of computer network technology. Nor can we sacrifice the legitimate rights and interests of intellectual property owners, including writers, scientists and artists, in exchange for the promotion and development of high-tech such as the Internet, nor can we create conditions for some lawless people to make huge profits by using high-tech and other people's intellectual property rights, which has become a brand-new topic to establish and improve the legal system of online copyright protection.