Website infringement is mostly active infringement, that is, websites reprint other websites or other people's works, do not indicate the source and author, do not pay remuneration to the relevant websites and authors, and infringe the personal rights and property rights of copyright owners, because most websites are profit-making economic organizations, and their illegality is obvious. We can find that this situation exists in large numbers. Many websites put software, articles, pictures, music and animations belonging to others on their own websites for users to browse and download, so as to charge users or attract advertisers' capital investment. Of course, whether the infringer aims at making profits does not affect the composition of the infringement.
Passive infringement of websites mainly refers to the situation that users of websites infringe in areas beyond their control, and the websites still do not delete infringing works after the copyright owner warns the websites. Due to the mass and freedom of website information, it is impossible for the website to review the legality of all uploaded information. When netizens infringe copyright, websites often cannot be found in time. At this point, the obligee can't pursue the tort liability of the website. However, the website is obliged to cooperate with the copyright owner to find the information of the infringer (generally, websites are managed by registered users), and remove the works in time after the copyright owner provides evidence to prove that the infringement has indeed occurred and warns the website, otherwise it will constitute * * * infringement.
The infringement of netizens is mostly passive infringement. We can often see that in areas where netizens can freely express their opinions (articles) such as forums or blogs, most netizens don't know that they have used other people's works (pictures, articles, music, animations, etc.). ), and they have to indicate the source and author, and even pay the author. Although most netizens are not malicious subjectively, they do constitute infringement. Of course, if you copy other people's works and publish them in your own name, that is active malicious infringement. We usually call this situation plagiarism. At the same time, China's Copyright Law stipulates some exceptions, for example, for personal study and appreciation, for the purpose of introducing and commenting on a work or explaining a certain problem, appropriately quoting the published works of others in one's own work does not require the consent of the right holder or payment. None of these cases is infringement. However, there are two issues that need attention. First, if the obligee explicitly declares that it is not allowed to use (reprint or copy) without permission, it must obtain the consent of the obligee in advance. Second, if the obligee doesn't make it clear, he may not get the consent of the obligee or pay him remuneration, but the source and author of the work must be indicated when using it, otherwise it will constitute infringement. 1. The forms of expression of works are diversified, and the digital form has become one of the main forms of expression of works.
Traditional manuscripts, printed matter and audio-visual works are the main forms of expression, and the boundaries between works can be said to be clear. In the network environment, due to the development of digital technology, almost all works can be freely digitized by computers, so information can be freely multimedia. The so-called multimedia refers to the use of digital technology, relying on the unified processing of words, sounds, images and other means of expression to show the effect of information. In this way, an intelligent operating environment can be realized.
In this context, three remarkable changes have taken place in the works: First, the dividing line between various works is increasingly blurred. For example, people gradually give up the original single writing style in news reports and replace it with hypertext structure. The so-called "hypertext structure" means that people use multimedia technology to create works, and the formed texts include not only words, but also sound texts, picture texts, animation texts and even film and television texts, so the works created from this can be described as vivid and vivid. 2 1 century, news reports will gradually change from linear text to hypertext structure. The emergence of this new creative way will blur the boundaries between literary works, fine arts works, film and television works and scientific works, and a final work may cover several basic types of works. In this regard, in the copyright law of 2 1 century, the significance of strictly distinguishing all kinds of works will gradually weaken, and a universally applicable standard may be adopted for protection. Second, the relationship between the work and the carrier gradually faded. Traditional works must be solidified on tangible carriers in the process of dissemination and utilization, and the application of digital technology directly leads to the digitization of works' information. Both language works and other works such as music can be described by binary numbers such as "0" and "1", and when spreading, information can often be directly spread to all corners of the world through the network. So the information in the works can flow freely. The relationship between the work and the carrier began to fade. "Digital technology is gradually cutting off the parasitic relationship between intangible and tangible things seen in traditional commercial works transactions ... works no longer exist independently by borrowing the coat of tangible objects, and we are facing a brand-new situation." Nevertheless, on this issue, we should not be too absolute and deny the role of the carrier in the information age, because the dissemination of a lot of information still needs the help of CD-ROM, floppy disk and other media. Third, the standards for the protection of works are vague. As far as traditional works are concerned, originality is the only condition for the protection of works, because traditional works can easily distinguish individual creative achievements and subjectively evaluate their artistic height. In the information age, works, especially multimedia works, contain a lot of data, some of which are original and some are not. In this case, it is difficult to define the originality of the above works, and it is also difficult to distinguish the copyright of each part, because it is difficult for people to distinguish which part was created by whom.
Some developed countries, such as Denmark, Finland, Norway, the United States and Europe, give special legal protection to databases. Originality is no longer a necessary condition for database protection, and the content of protection also extends to the data or materials that constitute the database itself. [3 1] Obviously, giving special protection to databases is naturally beneficial to developed countries that are the main exporters of data, but it is certainly unfavorable to developing countries that use data. Therefore, at the World Intellectual Property Organization database protection conference held in Geneva from 65438 to 0997, most delegates thought that the conditions for establishing an international database protection system were not mature. In the copyright law of 2 1 century, whether to adopt the traditional originality standard or lower the originality standard is still an important issue worthy of legal scholars' consideration.
2. The attribution of works is very complicated.
As far as traditional works are concerned, the creators of each component in the works are easy to distinguish and the ownership of the works is clear. In the network environment, a large number of works created by computers have sprung up, especially those created by multimedia technology, which are mostly the deformation and adaptation of previous works, and new works are constantly decomposed and adapted to form new works. Even ordinary internet enthusiasts can easily re-create and re-disseminate other people's works by using computer software. In such a highly information-based society, "adaptation culture" has arisen, and it is increasingly difficult to distinguish which part is created by someone. It is impossible and unreasonable for copyright to be restored to individuals, so the copyright system itself is pregnant with the possibility of change. In this context, it will be very difficult to determine the copyright ownership of each part. However, we believe that even in this context, it is not a thing of the past to distinguish the ownership of copyright, because a large number of single works such as musical works, literary works and artistic works will still appear, and the law should still fully protect the interests of creators. Moreover, the right of adaptation and integrity of works protected by traditional copyright law should be more fully protected in the network age, and the act of adapting and tampering with other people's works without permission should be explicitly prohibited by law.
3. The right content of copyright is informational.
In the traditional copyright system, the property right of copyright is centered on the right of reproduction, which widely involves the right of distribution, recording, broadcasting, adaptation and so on. Although these rights are closely related to communication technology, the relationship between them has been strengthened in the network age, and the exercise of copyright cannot be separated from the application of technical measures. In this era, a lot of information is transmitted through the information superhighway. The so-called "information superhighway" is equipped with the latest digital chemical fiber transmission, intelligent or computer processing and multimedia terminal service technology to form a multi-user, large-capacity, high-speed interactive regional, national or international comprehensive information network system. Its notable features are Qualcomm quantization of information transmission, popularization of network, integration of service and intelligence of system. The completion of the information superhighway has greatly promoted the transmission of information.
According to relevant statistics, by the end of 1999, the number of people completely surfing the Internet had reached 260 million, and the number of netizens in China had reached 8.9 million. In this regard, former US Vice President Al Gore commented: "The construction of the information superhighway is an information revolutionary social change, which will promote the change of people's life and work style." This change has also brought about major changes in the way works are copied and distributed. 1On September 5, 1995, the American Intellectual Property Working Group published its final report entitled "Intellectual Property and National Information Infrastructure" (hereinafter referred to as the "Report"), which put forward new suggestions for the development of intellectual property law. As we all know, under normal circumstances, users of computer network communication can browse and read works conveniently on their own computer screens, but only if the works are temporarily stored in memory, and the works will disappear automatically after being closed. The report holds that the temporary storage of works in memory constitutes copying, because this behavior can make the works displayed on the screen, which is consistent with the usual copying in nature, and the precedent in the United States has confirmed this. Therefore, when a work is transmitted from one computer to another, it can constitute a copy. If a work is transmitted from a user of one computer network system to a user of another computer network system, it constitutes multiple copies, and reading other people's works from a distance also constitutes copying. Secondly, according to the above theory, copy the works by scanning or displaying images and inputting files; When the digitized file is being uploaded to BBS (bulletin board system) or other servers, it also constitutes a copy. When information is downloaded from BBS or server, it also constitutes a copy. In a case tried in the United States (Sega v. Maphza), the court held that copying and distributing game software protected by copyright on the electronic report column constituted "copying", which was profitable and was not authorized by the copyright owner, so the defendant's behavior constituted infringement. Therefore, if a work is temporarily stored in a computer as a copy, the transmission, uploading and downloading of the work also constitute a copy. In contrast, in the traditional sense, "copying", such as printing, is to "copy" information by fixing the content of a work on a carrier. Copyright and neighboring rights. Copyright, also known as copyright, refers to the personal rights and property rights enjoyed by the authors of literary, artistic and scientific works and their related subjects according to law. Neighboring right is called "copyright-related right" in copyright law.
2. Patent right refers to the exclusive right of natural person, legal person or other organization to exploit inventions, utility models and designs within a certain period of time.
3. Trademark rights, that is, all kinds of rights enjoyed by trademark registrants or heirs of registered trademark rights within the statutory time limit.
4. The right to trade secrets, that is, the exclusive right that the civil subject enjoys according to law for technical information or business information belonging to trade secrets.
5. The right to new plant varieties, that is, the exclusive right to use varieties authorized by units or individuals who have completed breeding according to law.
6. The right of integrated circuit layout design means the exclusive right of integrated circuit layout design enjoyed by natural persons, legal persons or other organizations according to law.
7. Trade name right, that is, the exclusive right to use a trade name legally enjoyed by commercial subjects within a certain geographical scope.
There are great differences in theoretical circles about whether the right to reward scientific and technological achievements, the right to geographical indications, the right to domain names, the right to fight unfair competition, the exclusive right to database and the right to commercialization can become independent intellectual property rights.