Copyright belongs to the copyright owner, and the copyright shall be exercised by the copyright owner or the copyright-related obligee. The second paragraph of Article 4 of the Copyright Law before the amendment is as follows: "Copyright owners shall not violate the Constitution and laws, and shall not harm the interests of the public." After the revision of the Copyright Law, provisions on collective management organizations have been added in this respect: "Copyright owners and copyright-related rights holders may authorize copyright collective management organizations to exercise copyright or copyright-related rights. After being authorized, the copyright collective management organization can claim rights for copyright owners and copyright-related rights holders in its own name, and can conduct litigation and arbitration activities involving copyright or copyright-related rights as a party. " The copyright collective management organization is a non-profit organization, and its establishment mode, rights and obligations, collection and distribution of copyright license fees and supervision and management shall be separately stipulated by the State Council. It can be clear from this article that the copyright collective management organization can help the obligee realize the right of relief in its own name after being authorized.
Collective management of copyright means that many authors exercise their rights through a unified organization, that is, the collective management organization of copyright. In the west, the collective management system of copyright has a history of more than 200 years. Developed countries have decades or even hundreds of years of experience in this field. When China's 1990 copyright law was enacted, some experts proposed to include the collective management organization, but at that time, many people did not know about this organization, and China lacked relevant practical experience, so it was not included. However, in the practical field, there have been some organizations that collectively manage a certain aspect of copyright, such as music copyright society of china, which was established in 1992, and China Copyright Protection Center, which was established in 1998, etc., all of which have played an active role in their respective fields.
The revised Copyright Law stipulates copyright with a perfect right system, which is embodied in Article 10 of the Copyright Law. Some of these rights are exercised by the copyright owner himself, such as the right of distribution, adaptation and exhibition. But there are some rights that the copyright owner can't or can't control, such as the right to copy. China's copyright law stipulates the use system of works in the form of newspaper reprinting. Once a work is reprinted many times on a large scale, it is difficult to effectively protect the author's right to remuneration. Another example is the right to play music works. It is impossible for the author to know that the corresponding property rights of all radio and television stations that broadcast his works are difficult to realize, and so on. In this regard, in countries with developed intellectual property systems, authors often realize their rights through copyright collective management organizations, and collective management organizations perform obligations, license and collect fees on their behalf, which has become an effective means to manage authors' rights. The revision of the copyright law has made a principled provision on the collective management system of copyright, which is a great progress in legislation.
Exercising copyright or copyright-related rights through professional collective management organizations can save the cost of realizing or relieving rights for obligees and fully safeguard rights; For the country, it is also convenient to implement copyright management, and at the same time it is in line with the world intellectual property system; From the perspective of the whole society, it is conducive to maintaining the creative enthusiasm of right holders, stimulating creativity and promoting scientific and cultural progress.
Two, expand the scope and types of administrative punishment, strengthen the administrative law enforcement of copyright administrative departments.
For the protection of intellectual property rights, China's intellectual property law stipulates the dual-track system of judicial protection and administrative protection [2]. Some people argue that in the protection of intellectual property rights, judicial protection should be strengthened, administrative protection should be weakened, and excessive intervention of administrative forces on intellectual property rights should be prevented [3]. However, intellectual property disputes are numerous, influential and professional, and it is difficult to solve them all through judicial channels. Administrative protection has the characteristics of fast speed and simple procedure, which can handle disputes in time and save costs. And administrative protection has initiative, which plays a very important role in maintaining the legal order of intellectual property rights and promoting fair competition; Furthermore, the International Intellectual Property Organization also recognizes and supports the administrative protection of intellectual property rights, so the revised Patent Law, Trademark Law and Copyright Law all stipulate administrative protection and strengthen it, which is mainly reflected in the following two aspects in the revision of the Copyright Law:
1, expanding the scope of administrative punishment
Compared with Article 46 of the original Copyright Law, it can be seen that the revised Copyright Law adds the following administrative penalties (unless otherwise stipulated by laws and administrative regulations): (1) Without the permission of the copyright owner, even if it is not for profit, administrative penalties can be imposed, and this mode of communication is not limited to copying and distribution, but also includes performance, projection, broadcasting, assembly and dissemination through information networks. (2) Reproduction and distribution of audio-visual products of their performances without the permission of performers, or dissemination of their performances to the public through information networks without the permission of producers of audio-visual products, or dissemination of their audio-visual products to the public through information networks; (3) Deliberately avoiding or destroying the technical measures taken by the right holder to protect copyright or copyright-related rights in his works, audio-visual products, etc. without the permission of the copyright owner or copyright-related right holder. Or intentionally deleting or changing the rights management electronic information of works, audio-visual products, etc. ; (4) Making or selling works with counterfeit signatures, and not limited to works of art ... Thus, the intensity and breadth of administrative punishment in the field of copyright have been strengthened. On the one hand, based on the development and change of the scope of copyright object, the new right object needs administrative relief; On the other hand, considering that piracy is rampant at present, although it has been rectified for many years, it has not stopped its rampant momentum, which has increasingly seriously affected China's international reputation and is not conducive to the intellectual property exchange between China and the world. We should give full play to the active and rapid law enforcement role of administrative organs.
2. Expand the scope of administrative punishment.
The types of administrative punishment stipulated in the original copyright law are mainly confiscation of illegal income and fines; After the amendment, the confiscation and destruction of infringing copies and the confiscation of materials, tools and equipment used to make infringing copies were added, that is, in addition to the infringement income, the infringing products and information on the implementation of infringing acts were also confiscated. On the one hand, the color of punishment was enhanced, and the possibility of subsequent infringement by the infringer was eliminated to a certain extent, which could receive a good blow.
Third, improve the judicial procedure, adopt the principle of presumption of fault and stipulate the legal compensation system.
1. provides temporary protection measures.
In order to stop the infringement in time, preserve the possible evidence and lay the foundation for identifying the infringement, the WTO intellectual property agreement requires the judicial organs of member countries to take timely and effective temporary measures, such as temporary injunctions and evidence preservation measures, which is also a common practice in common law countries and civil law countries.
In China's current legal system, the constitution of tort should have the elements of "harmful consequences". Therefore, there is no judicial remedy for the upcoming infringement in legislation, and there is no temporary ban on this kind of behavior. Article 74 of the Civil Procedure Law stipulates that: in the case that the evidence may or will be difficult to obtain in the future, the litigants may apply to the court for evidence preservation, and the court may also take the initiative to take preservation measures. However, such measures can only be taken in litigation involving substantive disputes. Based on this, in the past judicial practice of copyright, it often happened that the infringement could not be stopped in time, the evidence of infringement was lost, the infringer was not punished, and the obligee was not protected, which weakened the judicial protection. After the revision of copyright law, the provisions of pre-litigation injunction, property preservation and evidence preservation have been added, which has broken through the traditional theory of infringement constitution and is another major progress in legislation, avoiding the further occurrence and expansion of infringement; Preserve and fix the evidence of infringement in time to facilitate the court to find out the case; Effectively safeguard the legitimate rights and interests of obligees.
2. Establish the imputation principle of fault presumption.
The principle of burden of proof in China's civil litigation is "whoever advocates, who gives evidence". According to this provision, in the field of copyright, the right holder should prove that the infringer has infringed his rights after filing a lawsuit. However, copyright infringement has its own characteristics, the number of infringements is increasing day by day, the means are becoming more and more specialized, and the fields involved are becoming more and more extensive, which brings considerable difficulties to the infringed. If copyright owners want to sue piracy that has been cured for several years, they need to prove that piracy is established. But in fact, after piracy is discovered by the right holder, the pirates often do not provide the source of pirated products, and cover up the illegality of pirated products with various excuses. It is difficult for the obligee to give a strong rebuttal on his own. This distribution of burden of proof has brought considerable difficulty to the determination of infringement facts, and it is also easy for the obligee to be afraid of difficulties when claiming rights, afraid of returning in vain, and even incur a lot of litigation costs. After the revision of the copyright law, this unfavorable situation for the obligee has been reversed. Article 52 of the revised Copyright Law stipulates: "If a publisher or producer of a copy cannot prove that its publication and production are legally authorized, and a publisher or lessor of a copy, a film work, a work created by a method similar to filming, a computer software or an audio-visual product cannot prove that its published or rented copy has a legal source, it shall bear legal responsibility." In this article, the burden of proof is reversed, and publishers, producers, distributors and lessors of copies or other products are required to fulfill their duty of care when using products to ensure the legality of their actions, otherwise they may bear legal responsibilities. The principle of presumption of fault established by copyright law is of great significance to the implementation of copyright and the perfection of copyright dispute litigation system.
3. Refine the compensation provisions and increase the legal compensation amount.
Before the amendment, the Copyright Law only stipulated the issue of compensation in principle, but it was refined after the amendment. Article 48 of the Copyright Law lists several methods to determine the amount of compensation: (1) compensation according to the actual loss of the obligee; (two) compensation according to the illegal income of the infringer; (3) Compensation according to the legal compensation amount. After the amount of legal compensation is determined, even if the actual loss of the obligee and the illegal income of the infringer are difficult to determine, the people's court can still order the infringer to make compensation within the limits prescribed by law according to the social impact, plot and scope of the infringement, thus avoiding the embarrassing situation of "winning the case and losing money" in the past and raising the protection of the obligee to a new level, which is in line with international common practice. At the same time, the establishment of this system enriches China's civil compensation system.
With the rapid development of economy, science and technology and culture, the revision of copyright law will not be done once and for all. However, the revised copyright law has reached the international level in both legislative content and legislative technology. Facing the wave of knowledge economy and the increasingly perfect protection of intellectual property rights by the international community, I believe that the copyright protection system in China can fully meet the requirements of the times and provide high-quality legal services and strong judicial guarantee for the implementation of China's strategy of rejuvenating the country through science and education.