From 65438 to 0994, China was officially connected to the Internet. Today, it is only over 20 years, but the Internet in China has developed rapidly. From four portals to search is king, to the rise of social interaction, to today's mobile Internet-web pages, with the existence, development and iteration of the Internet.
As the basic element of the website, the pages with great characteristics and aesthetic artistic value will also attract more traffic for the website. A good web design needs a lot of manpower and material resources; A good web design may lead to "plagiarism" by some competitors-the infringement dispute of "web page" arises from this. In judicial practice, how to identify the position of "web page" in copyright law will be briefly analyzed in this paper with judicial cases.
First of all, "web page" constitutes the standard of the work.
The current copyright law does not stipulate the conceptualization of "works" (there are some changes in the revised draft, which can be understood by interested people), but the Regulations on the Implementation of the Copyright Law stipulates that "works referred to in the copyright law refer to intellectual achievements that are original in the fields of literature, art and science and can be reproduced in some tangible form". Thus, as long as the "web page" meets the constitutive requirements of the work-originality and reproducibility, it can be recognized as a work.
For example, in the case of copyright ownership and infringement dispute between Beijing Eton Hotel Services Co., Ltd. and Chongqing Li Longji Holdings Co., Ltd. (20 12), the court held that "the plaintiff's website page is composed of photographic works, characters, graphics and other elements, and it has selected and arranged the pictures, characters and other elements of the corresponding page according to the company's business scope, characteristics, creativity and other factors, which reflects certain originality.
In the case of copyright ownership and infringement dispute between Chengdu Tianjiu Safety Technology Consulting Co., Ltd. and Chengdu Zhining Safety Technology Consulting Co., Ltd. (20 18) Chuan 0 1 Minzhong No.6961,the court held that "the webpage of Tianjiu Company's website is mainly written with pictures and icons, and the written part includes both the written works created by Tianjiu Company itself. In typesetting design, Tianjiu Company selects, classifies and arranges some common column names according to its own business, and integrates them into an organic whole through column type setting and grading setting, thus providing a unique expression. Therefore, the website page of Tianjiu Company belongs to works in the sense of copyright law, and Tianjiu Company enjoys copyright. "
As can be seen from the above cases, when the court determines whether a "web page" constitutes a work, it mainly examines whether the elements of the web page and the arrangement and selection of elements are original. The elements of the web page are mainly words, patterns, hyperlinks, column settings and various buttons. It should be noted that in practice, the court's standard for "originality" is generally "minimum original standard".
Second, what kind of works does the "web page" belong to?
1. Identify "Web page" as computer software.
Some people think that web page is a kind of computer software, and the author thinks this view is debatable. Computer software includes computer programs and related documents. Article 3 of China's "Regulations on the Protection of Computer Software" stipulates: "(1) A computer program refers to a coded instruction sequence that can be executed by computers and other equipment with information processing capabilities to obtain a certain result, or a symbolic instruction sequence or a symbolic sentence sequence that can be automatically converted into a coded instruction sequence. The source program and the target program of the same computer program are the same work. (2) Documents refer to written materials and charts used to describe the content, composition, design, functional specifications, development and test results and usage of programs, such as program design instructions, flow charts, user manuals, etc. "
As a digital file, a "web page" contains an HTML text file, but it is not a coded instruction sequence. In the case of copyright infringement dispute between Hello Zhonghui Technology Development (Beijing) Co., Ltd. and the defendant Henan Focus Education Development Co., Ltd. and Beijing Liu Xin Institute of Information Science (20 12) Chaominzichu No.20255, the court held that "the premise of determining computer program infringement is that the source code of the program accused of infringement is the same as or substantially similar to the source code of the program claiming rights, and the source code supporting web page operation, if original and in line with China's", In this way, the code source files for making and running web pages can be identified as computer software, but the web interface itself is not computer software.
2. Identify "web pages" as "web works"
This view holds that the current copyright law can no longer adapt to the development of technology, and the "web page" should be set as a kind of "web page digital work" (or "digital work") separately. The author thinks this view is inappropriate. It is true that in view of the limitation of legislative technology and the rapid development of society, the law has its lag and needs to be revised according to the development of the times. However, it does not mean that the law needs specific amendments to regulate all new things. If such amendments are needed, the stability and predictability of the law will disappear. When new things appear, what we have to do is to find the path of regulation within the existing legal framework and maintain the integrity and unity of the legal system. What's more, the form of "web page" has not escaped from the scope of the current copyright law. It is still our first choice to analyze new things and find legal basis within the current legal system.
3. Identify "Web page" as "assembly work"
At present, the identification of "web pages" in judicial practice is mostly "compiled works". In the case of copyright ownership and infringement dispute between Zhejiang Panshi Information Technology Co., Ltd. and Hangzhou Lintai Energy Saving Technology Co., Ltd. (20 14), the court held that "Web pages are usually selected and arranged based on materials such as words, art and photography, and if they are original, they should belong to the compilation works in the sense of copyright law"; In the case of Guangzhou Netease Computer System Co., Ltd. v. Hainan Stordahl Network Technology Development Co., Ltd. and Guangdong Yin Da Culture Development Co., Ltd. (2007) Guangdong Famin Sizhi Zi ChuNo. 103, the court held that "Netease Company is in
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The e-mail system version interface page and the D plan version interface page displayed and used on the website are mainly words, which are composed of art and graphic design materials such as forms, icons and colors, and are original compiled works. "
The author thinks that it is more appropriate to identify "Web page" as "assembly work", and it can also reasonably protect the legitimate interests of the copyright owner of "Web page". As a collection carrier of works and non-works, such as words, graphics, photographic works, hyperlinks and column settings, "Web page" conforms to the definition of "collection of works" in Article 14 of the Copyright Law. "A collection of several works, pieces of works or materials that do not constitute works, and the selection or arrangement of their contents reflects originality, is a collection of works". At the same time, the material of a single work of a collection of web pages can also be based on copyright law.
In addition, it should be noted that whether a single work material enjoys copyright does not affect the rights of the copyright owner of the webpage. In the case of (20 12) Yang Minsan (Zhi) No.310, the court held that "although a compiled work consists of a series of works or materials that do not constitute a work, it still belongs to an original work with independent copyright. Whether the materials collected in the assembly work constitute a work or not, and who enjoys the copyright of the materials, does not affect the compiler's copyright in the assembly work ",although the two defendants provided a collection.
Third, the defense of "limited expression" or "public domain"
There are tens of thousands of websites in China (released in internet society of china at the end of 20 17), and sometimes the design of the webpages is similar. Is this "similarity" an infringement?
Shanghai Shichang Information Technology Co., Ltd. v. Guangzhou Science and Technology Co., Ltd. and Chongqing Cable TV Network Co., Ltd. (20 17), Chongqing 0 102 Min Chunuo. 17495, the defendant replied that "the content of this case is embodied in WeChat, and the content of WeChat client is limited, even if there is some similarity, it cannot be considered as infringement". The court also held that "the copyright law protects original expression, not creativity. And in the case that the expression of ideas is unique or limited, the expression is not protected by copyright law "; At the same time, the court held that "the functions of the two are similar, and the users' needs are similar, and the above-mentioned official WeChat account is designed around the users' needs under the premise of Tencent's basic setting of the official WeChat account, which will inevitably lead to the similarity of the contents of the official WeChat account. When designing the official WeChat account, Shanghai Vision Company cannot prohibit others from using expressions that belong to the public domain. "
Copyright law protects "expression" rather than "thought", and the legislative purpose of copyright law is also to encourage the creation of works and promote cultural prosperity, rather than allowing authors to monopolize works. When the expression of an idea is restricted-that is, the combination of "thought" and "expression" appears, even if one creator uses this expression first, it cannot restrict other creators from using the same expression, otherwise there will be a phenomenon that some "thought" can only belong to one person. Therefore, if you inevitably use the same creation as other web pages, you can use the defense of "restricted expression" or "public domain" to avoid taking responsibility.
Fourth, the anti-unfair competition law protects "web pages"
In numerous "web page" disputes, plaintiffs not only seek the protection and relief of copyright law, but also sometimes file unfair competition lawsuits for protection. The author believes that the protection of the "web page" that constitutes a work should be recognized according to the provisions of the copyright law. Whether it constitutes unfair competition has nothing to do with whether a "web page" constitutes a work. The determination of unfair competition needs to be based on other evidence, such as the evidence of the popularity of the plaintiff's website, the propaganda language used by the defendant's website, certificates, etc. , to prove whether it constitutes a "free ride", making people mistakenly think that the original defendant has specific connections, false propaganda and other plots.
Verb (abbreviation of verb) conclusion
Combining judicial practice and legal provisions, it is the cheapest way for the right holder to protect his own interests to identify the "web page" that constitutes a work as a compilation.
At the same time, it should be noted that this article does not discuss "other works stipulated by laws and administrative regulations" in Item 9 of Article 3 of the Copyright Law, which does not mean that the compiled works and "other works" belong to an either-or relationship. The two are not mutually exclusive, but are classified differently due to different classification standards.
So why not identify "web pages" as "other works"? In fact, it is reasonable to identify "web pages" as "other works". But compared with compiled works, "other works", as a bottom clause, is not as clear as the provisions of compiled works. In practice, due to the convenience of proof and the fact that the stipulation of compilation works does not affect the determination of infringement, the parties and the court choose compilation works to protect the "web page".