How is image infringement defined and what are the conditions for determination?
For each of us, we all enjoy some rights to intellectual achievements and labor results, just like the pictures we take or the electronic versions of paintings we draw belong to us. a right to the fruits of labor.
When we indicate that we cannot re-upload, re-modify or use our own things for commercial purposes, if others use our pictures without our permission, it constitutes a kind of infringement. problem.
Malicious tampering and theft
When each of us makes our own pictures, they are the fruits of our own personal labor. When we have clearly stated on these things Others are not allowed to use it, so if others use our pictures at this time, they need our authorization. For example, some people maliciously tampered with our pictures when they saw them and wanted to upload them, tampering with the source and the original color of the picture. This has caused picture infringement to a certain extent. Or directly take our pictures and send them to others on our publicly released website, or upload them to the Internet again, which will also cause infringement issues.
Use for commercial use
The most obvious problem of image infringement is to put our own private images on the Internet, or to use them for profitable commercial purposes, which is the most serious problem. image infringement issues. Not only does the use of our pictures infringe on the fruits of our labor and personal portrait rights, it even produces a profit-making effect. This is picture infringement. If we can provide the source of genuine pictures, then we can seek help from the police and safeguard our legitimate rights and interests.
Copyright Awareness
Intellectual property is the greatest wealth for each of us. We must maintain the copyright of our personal pictures. If someone needs to appreciate our pictures, we can do so appropriately. Allow them to take it. But if it is for commercial profit, then we should let them communicate with us before using it. When we find that we have suffered from image infringement, we must take up legal weapons to protect our legal rights. How to determine and compensate for image infringement in 2023
1. The criterion for determining image infringement is certain distinctive signs or patterns in the pattern. If the color and tone are simply adjusted, it is an infringement. Or using it without the consent of others is also an infringement. 2. The amount of compensation for image infringement needs to be determined in accordance with the order of different factors. Let me explain the relevant content for you below for your reference and study. I hope it will be helpful to everyone.
1. How to determine and compensate for image infringement
(1) The criterion for determining image infringement is certain distinctive signs or patterns in the pattern. If the color and tone are simply adjusted, it is an infringement. . Or using it without the consent of others is also an infringement.
(2) The amount of compensation for image infringement needs to be determined in accordance with the following factors in order.
1. The actual loss of the picture right holder or the actual amount of infringement by the picture infringer
Picture infringement should first consider the actual loss, that is, the actual loss of the picture right holder or the actual loss of the picture infringer. The actual losses caused by the infringement to the right holder.
2. Illegal profits of the infringer of the picture;
If the actual loss of the right holder cannot be estimated, the compensation standard can also be estimated based on the illegal profits of the infringer of the picture. .
3. When none of the above can be determined, the court will make a decision based on the specific details.
When neither the actual loss of the right holder nor the illegal profit of the infringer can be estimated, the court will analyze the specific situation based on the evidence submitted by both parties, and finally determine the amount of compensation based on the actual situation.
Article 48 of the "Copyright Law of the People's Republic of China" stipulates: "In case of infringement of copyright or copyright-related rights, the infringer shall compensate the right holder according to the actual loss; actual loss If it is difficult to calculate, compensation may be awarded based on the illegal income of the infringer.
The amount of compensation should also include the reasonable expenses paid by the right owner to stop the infringement. If the actual losses of the right holder or the illegal gains of the infringer cannot be determined, the people's court shall, based on the circumstances of the infringement, award a compensation of not more than 500,000 yuan."
2. Determination of Design Patent Infringement What is the method?
1. Determine the scope of protection of the design patent right. According to the provisions of Article 59, paragraph 2, of the Patent Law, the scope of protection shall be determined by the design patentee when applying for the design. The pictures or photos of the design patent product submitted to the patent office shall prevail, including the front view, top view, side view, etc. The front view is the most important because it best reflects the beauty of the design. When determining the scope of protection of a design patent, you should also pay attention to identifying the elements that can reflect the beauty of the design from these views.
2. Determine whether the design patent product and the infringing product belong to the category. Identical or similar goods. Chinese judges usually use the function and use of the product as the criteria, and also refer to the classification of the relevant goods in the international design classification table (i.e., the Locarno Treaty). If the products are identical in function and use, it can be determined that the two are the same or similar goods, and the comparison in step 3 below can be continued. If the two are different in function and use, it can be determined that the two are neither the same goods nor the same. If the product is not a similar product, our infringement determination step can be concluded and the patent infringement is not established.
3. Compare the design patent with the alleged infringing product from the perspective of ordinary consumers. The patented design and the design of the alleged infringing product shall be carefully observed and compared with each other. The following three results may occur:
(1) The design of the alleged infringing product shall be compared with the design of the alleged infringing product. If the patented design is identical, it is deemed that the former falls within the scope of patent protection, and patent infringement is established.
(2) The design of the accused infringing product is basically the same as the patented design. If the overall design is similar, the patent infringement may be determined based on the principle of equivalents.
(3) If the design of the accused infringing product is neither identical nor similar to the patented design as a whole, then the patent infringement will be established. It is determined that the product accused of infringement does not fall within the scope of patent protection, and the patent infringement is not established.
Through my introduction, we can understand that there are several ways to judge image infringement. If infringement is determined. You can ask the other party to compensate for losses. I hope you can understand. Is it illegal to use other people’s pictures in an online store?
Using online pictures is an infringement, regardless of whether it is for profit or not, and using pictures posted by others on the Internet is illegal. Websites, online stores and other places infringe the author's right to disseminate information on the Internet. If there is no signature, it infringes the author's right of authorship.
Moreover, image infringement is essentially an intellectual property infringement, so it constitutes an infringement. The requirements are as follows:
1. Regarding the issue of illegality. At least in the field of intellectual property infringement, the requirement of illegality is essential.
2. Regarding the fact (result) of damage. In the constitution of intellectual property infringement, the fact of damage (result) is no longer a necessary component. This is also one of the differences between intellectual property infringement and general civil infringement.
3. Regarding causality. This is a necessary requirement for civil torts in general civil tort theory. However, since some intellectual property infringements do not require damaging consequences, only intellectual property infringements that cause damaging consequences need to determine the liability of the infringer. The determination of causality is meaningful only when the degree of responsibility is determined.
4. Regarding subjective requirements. The constitution of intellectual property infringement does not require subjective fault.
The rights protection methods for photos that have been infringed on the Internet are as follows:
1. Mediation. Both parties may invite the copyright administration agency or copyright agency or other third party to act as a mediator to reach an agreement through negotiation and resolve the dispute in accordance with the principle of voluntariness.
2. Administrative complaints.
If the infringement also harms the interests of the public, the infringer, in addition to bearing corresponding civil liability, may also be ordered by the copyright administrative department to stop the infringement, confiscate the illegal gains, confiscate and destroy the infringing copies, and may impose a fine , if the circumstances are serious, materials mainly used to make infringing copies may also be confiscated.
Legal basis
:
Article 217 of the Criminal Law of the People's Republic of China and the People's Republic of China The crime of copyright infringement is for the purpose of profit, and there are Anyone who commits one of the following infringements of copyright or copyright-related rights and the amount of illegal gains is relatively large or there are other serious circumstances shall be sentenced to fixed-term imprisonment of not more than three years and concurrently or solely with a fine; if the amount of illegal gains is huge or there are other particularly serious circumstances shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years, and shall also be fined:
(1) Reproduction, distribution, and dissemination to the public of written works, music, art, audio-visual works through information networks without the permission of the copyright owner Works, computer software and other works stipulated in laws and administrative regulations;
(2) Publishing books for which others have the exclusive right to publish;
(3) Without audio or video recording Copying, distributing, and disseminating to the public through information networks the audio and video recordings made by the producer without the permission of the performer; Disseminating his/her performances to the public on the Internet;
(5) Producing and selling works of art that counterfeit the signature of others; Licensing, intentionally avoiding or destroying the technical measures taken by the right holder to protect copyright or copyright-related rights for its works, audio and video products, etc.
Article 24 of the "Copyright Law of the People's Republic of China": Under the following circumstances, a work may be used without the permission of the copyright owner and without payment of remuneration to the copyright owner, but the name of the author must be specified , the title of the work, and must not affect the normal use of the work, nor reasonably damage the legitimate rights and interests of the copyright owner:
(1) Use other people’s published works for personal study, research or appreciation;
(2) In order to introduce or comment on a certain work or explain a certain issue, appropriately cite the published works of others in the work;
(3) In order to report the news, in the newspaper Unavoidable reproduction or quotation of published works in , journals, radio stations, television stations and other media;
(4) Newspapers, periodicals, radio stations, television stations and other media publish or broadcast other newspapers, periodicals, radio stations and other media Current affairs articles on political, economic, and religious issues that have been published by radio, television and other media, except those that the copyright owner has stated that they are not allowed to be published or broadcast;
(5) Newspapers, periodicals, radio stations, television stations, etc. The media publishes or broadcasts speeches delivered at public gatherings, except where the author declares that they are not allowed to be published or broadcast;
(6) Translating, adapting, assembling, broadcasting or copying in small quantities for school classroom teaching or scientific research Published works may be used by teaching or scientific researchers, but shall not be published or distributed;
(7) State agencies may use published works within a reasonable scope for the purpose of performing official duties;
( 8) Libraries, archives, memorial halls, museums, art galleries, cultural centers, etc., copy works collected by the library for the purpose of display or preservation of versions;
(9) Free performances of published works, the The performance does not charge fees to the public, nor pay remuneration to the performers, and it is not for profit;
(10) Copying, painting, and other works of art that are installed or displayed in public places Photography and videography;
(11) Translating works created in the national common language and written by Chinese citizens, legal persons or unincorporated organizations into ethnic minority languages ??for domestic publication and distribution;
(12) Provide published works to people with dyslexia in an accessible manner that they can perceive;
(13) Other circumstances stipulated by laws and administrative regulations. The provisions of the preceding paragraph shall apply to restrictions on rights related to copyright.