1, illegal. The act that causes factual damage must be illegal, and the actor shall be liable for compensation. Otherwise, even if there are damage facts, the actor cannot be held liable for compensation. No matter whether the activities carried out by the actor infringe the interests of the copyright owner, or whether the activities carried out by the actor pose a major threat to the interests of the copyright owner and will inevitably harm the interests of the copyright owner in the future, it constitutes an act of copyright infringement;
2. Damage the facts. Usually refers to the behavior carried out by the infringer that objectively brings harm to the injured party. If the infringer's behavior causes damage to the copyright owner, and there is no clear reason for responsibility, the infringer shall bear legal responsibility. If the infringer commits an infringement and does not cause actual damage to the copyright owner, if someone illegally copies a large number of his works without the permission of the copyright owner, but does not branch them, is this a copyright infringement? Another example is that a publisher publishes without the permission of the author, but pays the author. I think these are all acts of infringement, because they have neither the permission of the author nor the permission of the law. The infringer exercises the rights that should have been controlled by the copyright owner, or hinders the exercise of the copyright owner's rights;
3. Causality. That is, only when there is a causal relationship between the tort and the damage consequences, the infringer will bear the responsibility. If the offender violates the law, but the victim's damage has nothing to do with it, it cannot be made liable for compensation;
4. Subjective fault. In the act of infringing copyright, if fault liability is applied, the person who is subjectively at fault shall bear the responsibility. Fault is a psychological state in which the actor decides his own behavior. Fault includes intentional and negligent forms;
5. Analysis of the plaintiff's works. According to the law of our country, the generation of copyright adopts the principle of automatic protection, that is, once a work is created, copyright is generated. Therefore, unlike other types of intellectual property infringement such as patents and trademarks, the determination of copyright infringement also involves the validity of rights. A work with valid copyright must meet the following conditions at the same time: it belongs to the scope of works protected by copyright law; Be original; Can be reproduced in some tangible form. As long as any condition is not met, the plaintiff's work is not protected by copyright law. In this way, of course, the defendant did not infringe. If the plaintiff's work meets the above conditions at the same time, the work enjoys the protection of copyright law;
6. Analysis of the alleged infringing works and the defendant's use. The following two criteria can be applied to the analysis of alleged infringing works: first, "contact", that is, having the opportunity to contact the last work; The second is "substantial similarity", that is, the parts that should be protected by copyright are substantially similar. Among them, the latter is the focus of identification. When determining whether the original and defendant's works are "substantially similar", the copyright-protected part of the plaintiff's works should be compared with the corresponding part of the defendant's works to determine whether they are substantially similar.
Copyright infringement, without the consent of the author and other copyright owners, is not a case of fair use and legal use, but an unauthorized use of the work, so it is a violation of copyright law.
In China's judicial practice, people's courts have also had successful cases in judging whether the original and defendant's works are substantially similar. If the defendant's behavior belongs to the use of works, then it is necessary to analyze the way the defendant uses it. The relevant intellectual property laws stipulate different meanings of "use mode". For example, the "implementation" mentioned in the patent law means applying for a patent to the industry, manufacturing the same product according to the instructions or using the same method; In contrast, in the Copyright Law, it refers to "copying", that is, making one or more copies of a work by printing or copying. When an object (such as a practical work of art or a design work) is protected from different angles by the patent law and the copyright law, special attention should be paid to distinguishing between "implementation" and "reproduction", which constitute different types of infringement.
As for "copying", the most common way to use works, according to the provisions of China's Copyright Law, the construction and production of industrial products according to engineering designs, product design drawings and their descriptions does not belong to "copying" as referred to in the Copyright Law. Therefore, in our country, copying plane works in three-dimensional form does not constitute infringement of plane works.
What are the types of copyright infringement?
1 Direct Infringement Any act of copying, publishing, distributing, adapting, translating, playing, performing, exhibiting or photographing in any way without the permission of the author or other copyright owners constitutes direct infringement of copyright. This kind of infringement is the main target;
2. Indirect infringement means that the infringer's infringement is the continuation of others' infringement, which constitutes indirect infringement; Or someone must be responsible for the behavior of others, and he has not directly engaged in any infringement;
3. Breach of contract infringement This kind of infringement mainly occurs in copyright transfer and copyright licensing activities. For example, the copyright transferee or licensee violates the contract and uses the copyright beyond the agreement in the transfer agreement or license agreement without authorization. This kind of behavior constitutes both breach of contract and infringement. This situation is more common in the transfer and licensing of computer software;
4. Some infringers do not copy, adapt, translate or otherwise use other people's works without the permission of the copyright owner, but partially use other people's works. Some violations occur most widely. In real life, this method is basically used by booksellers to edit large reference books, extract them from various books and edit them into reference books.
legal ground
Copyright law of the people's Republic of China
Article 47 Anyone who commits one of the following acts of infringement shall bear civil liabilities such as stopping the infringement, eliminating the influence, making an apology and compensating for losses according to the circumstances:
(1) publishing his work without the permission of the copyright owner;
(2) publishing a work created in cooperation with others as a work created by oneself without the permission of a co-author;
(three) did not participate in the creation, in order to seek personal fame and fortune, signed other people's works;
(4) distorting or tampering with other people's works;
(5) Plagiarizing other people's works;
(6) Using a work by means of exhibition, filming or adaptation, translation or annotation without the permission of the copyright owner. Unless otherwise provided for in this law;
(seven) the use of another person's work, which should be paid but not paid;
(8) Renting works or audio-visual products without the permission of the copyright owner or copyright-related obligee of film works and works created by similar film production methods, computer software and audio-visual products, except as otherwise provided by this Law;
(9) Using the layout design of books and periodicals published by publishers without their permission;
(10) Live broadcast or public dissemination of a live performance or recording of a performance without the permission of the performer;
(eleven) other acts of infringement of copyright and copyright-related rights and interests.