What are the principles for determining copyright infringement and what are the principles of copyri

What are the principles for determining copyright infringement, the Copyright Law only enumerates infringement acts, but there is no clear standard for determining it. In practice, what are the principles for determining copyright infringement? What kind of acts can be regarded as copyright infringement that causes losses to the copyright owner?

Principles for Determining Copyright InfringementPrinciples for Determining Copyright Infringement In judicial practice, the commonly used principles for determining copyright infringement are: Principle 1: The dichotomy between thought and expression The idea of a work is excluded from the scope of protection of the Copyright Law.

This is a basic requirement of the principles of copyright law. Article 9.2 of the Berne Convention clearly states that copyright protection extends to expressions and not to ideas, processes, methods of operation or digital concepts per se.

Article 5 of the Draft Amendment to the Copyright Law (hereinafter referred to as the "Draft") submitted by the Copyright Office of China on January 8, 1998 also added provisions on the protection of expressions under the Copyright Law, but not the protection of ideas, concepts, discoveries, principles, methods, manifestations and processes. In general works, the distinction between thought and expression can be clearly distinguished, but in computer software works, the boundaries are not clear. Even if it is an expression of an idea, but it is in the public domain, for example, if it is a unique expression, the expression is also not within the scope of protection.

Principle 2: Principle of Contact and SimilarityAfter separating ideas from expression, public domain and private rights, if two works are identical or similar, whether plagiarism is constituted can be determined by whether the authors of the two works have contact or traces of contact in the works. Infringement is established if the right holder is identical or similar to the defendant's work, and the defendant is unable to provide information about its creative process to prove that it was created independently without imitation.

It can be seen that the burden of proof here has been reversed, that is, the author of the accused work proves that he has not been in contact with the plaintiff's work, otherwise it can be presumed that there has been contact. In judging whether two works are the same or similar, there is the so-called substantive part, that is, the accused work imitates the substantive part of the right holder's work. However, what exactly is the substantive part of a work and how to judge the substantive part is still a matter of opinion.

This needs to be further explored in judicial practice. There are roughly the above two basic principles on the principle of determining copyright infringement, if you want to know more, please call Bajie Intellectual Property ** customer service. Bajie Intellectual Property is a brand of Shenzhen Flower Mushroom Network Technology, which was established in Shenzhen in 2016, received angel investment from the founder of Langke Technology, a listed company on the main board of China in 2017, and invested by Kingdee International, a listed company on the main board of Hong Kong in June 2018.

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Contact + substantial similarity.

If the alleged infringing work is the same or substantially similar to the prior work claimed by the plaintiff, and the defendant has come into contact with the work claimed by the plaintiff or there is a possibility of contact with the work claimed by the plaintiff during the creation, and the defendant cannot provide evidence or explain that the allegedly infringing work is legal, it may be determined that the defendant has infringed the plaintiff's copyright.

What are the principles for determining copyright infringement? 1. The principle of "fault liability", that is, as a plaintiff, you must not only prove that the other party has violated your rights, but also prove that the other party is at fault. 2. The "no-fault liability principle", that is, it is not necessary to prove whether the other party is at fault in the main calendar, as long as it is proved that there is infringement.

3. The "principle of equitable responsibility", that is, in some cases, the plaintiff and the defendant are not at fault, but the plaintiff has a great loss, for the sake of fairness, the law specifically stipulates that the defendant needs to bear a certain liability for compensation under certain conditions. As a plaintiff, you need to prove the existence of the loss and whether it falls under the statutory "special circumstances". Is this an easy explanation?

The principles for determining copyright infringement are: the principle of subjective fault, the principle of damages, the principle of legal prohibition, the principle of harming the legitimate rights and interests of others, the principle of causation, and other principles of determining copyright infringement as prescribed by law.

[Legal basis].

The first seven and eleventh items of the first paragraph of Article 5 of the Copyright Law of the People's Republic of China, which came into effect on June 1, 2021.

1) Publishing a work without the permission of the copyright owner;

2) Without the permission of the co-authors, publishing a work created in collaboration with others as a work created by oneself alone;

3) Signing the works of others without participating in the creation of works for the purpose of seeking personal fame and wealth;

4) Distorting or tampering with the works of others;

5) Plagiarizing the works of others;

6) Without the permission of the copyright owner, the work is used by means of exhibiting or filming audiovisual works, or the work is used by means such as adaptation, translation, or annotation, except as otherwise provided in this Law;

7) Using others as Kai Bao products, and failing to pay remuneration that should be paid;

1) The fact that there is infringement. That is, without the permission of the copyright owner, the actor does not follow the conditions of use stipulated in the Copyright Law to use the copyright owner's works, as well as performances, audio-visual products, and radio and television programs;

3) The perpetrator is subjectively at fault. The so-called fault refers to the psychological state of the infringer about his tortious act and its consequences, including two forms: intentional and negligent.

1. How to prove copyright infringement?

1) Evidence to prove that Zheng Qisheng is the copyright owner of the work (the creator, the creator of the collaborative work, the right holder of the service work, and the right to inherit or transfer part of the work);

2) Evidence to prove the right to claim (copyright owner or its licensor, successor, or assignee), especially for service works, it is necessary to clarify the right holder and the division of rights and rights.

3) Evidence proving that the infringer has committed the infringement (which is a statutory infringement circumstance), and the burden of evidence excluding fair use or permitted use shall be borne by the defendant;

4) Evidence of the circumstances of the infringement (the implementation of the infringement, the scope of impact, the extent of the damage, etc.), including economic damage and mental damage;

5) Evidence of the claim for compensation, such as the size of the damage and the size of the infringer's profits.

2. How to deal with copyright infringement?

There are generally three ways to deal with copyright infringement by mediation, arbitration and litigation. Mediation refers to the dispute resolution method in which the parties reach a settlement agreement under the auspices of the mediation organization when a dispute occurs. Arbitration refers to the dispute resolution method in which an arbitration institution adjudicates the dispute between the parties in accordance with certain arbitration procedures.

Copyright litigation refers to a way to resolve copyright disputes by filing a lawsuit with the people's court and using litigation procedures.

The parties can reach a settlement in accordance with the provisions of precedent and relevant law; Whether it is a copyright infringement dispute or a copyright contract dispute, it can be resolved through mediation; Arbitration is a legal act in which an arbitration institution resolves copyright disputes in accordance with the law in accordance with the arbitration clause; Lawsuit.

2. Principle of damage: infringement is an act that infringes on the legitimate rights and interests of others, and the act causes harmful consequences. Acts without harmful consequences do not constitute torts. Since the tort is always linked to the damage consequence, the tort is called tortious damage.

3. The principle of fairness: The principle of fairness has been widely used in the field of civil rights protection. It can remedy the inadequacy of specific regulations, and in the absence of specific provisions in the law, judges can directly make rulings based on the concept of fairness and determine the allocation of rights and obligations and civil liabilities between the parties.

1. How to arbitrate copyright infringement disputes?

1) Arbitration of copyright infringement disputes is mainly used to deal with copyright contract disputes. In the course of performing a copyright contract, if the parties fail to perform their contractual obligations, or if the performance of the contractual obligations does not meet the agreed conditions, the parties may apply to the copyright arbitration institution for arbitration.

2) The arbitration institution shall not arbitrate unless a written arbitration agreement is voluntarily reached in order to apply for arbitration.

3) Once an arbitral award is made, if the parties apply for arbitration or file a lawsuit with the people's court for the same dispute, the arbitration commission or the people's court shall not accept it.

4) The arbitral award is legally enforceable and the parties shall perform it. If one of the parties fails to perform the arbitral award, the other party may apply to the court for enforcement. If the court finds that the arbitral award is unlawful, it has the right not to enforce it.

2. What are the requirements for copyright infringement Li Qi's construction tour Zheng Cheng?

1) The infringement is illegal. Illegal acts that infringe copyright and cause damage are generally manifested in two forms: acts and omissions. That is to say, in the field of copyright infringement, acts and omissions can constitute illegal acts, such as interpreting other people's works without permission, plagiarism, and stealing other people's works.

The law stipulates that the subject should be a certain act, and the subject's failure to perform its obligations is an illegal act of omission.

2) The objective existence of the fact of harm. The establishment of a tort must be based on the objective existence of the fact of damage. Copyright is a typical one and two rights, and when the copyright is infringed, the property or person of the copyright owner may suffer no benefits.

Damage to the moral rights of the copyright refers to the infringement of the copyright by the illegal act of the infringer on the right of publication, the right of authorship, the right of modification, and the right to protect the integrity of the work, thereby causing damage to the property and moral interests of the copyright owner.

The criteria for determining copyright infringement are as follows: 1. Publishing the work of others without permission; 2. Publishing a collaborative work as a work created by oneself without permission; 3. Signing on the works of others; 4. Distorting or tampering with the works of others; 5. Plagiarizing other people's works; 6. Using other people's works or adapting, translating, or annotating them without permission; 7. Using other people's works without paying remuneration. The infringer shall compensate according to the actual losses of the copyright owner; where it is difficult to calculate the actual losses, compensation may be made in accordance with the unlawful gains; Where the unlawful gains cannot be determined, the court may, based on the circumstances, award compensation of up to 500,000 yuan.

1. Whether an apology can be awarded for copyright infringement.

Generally, you can ask for an apology for copyright infringement.

1) Publishing a work without the permission of the copyright owner;

2) Without the permission of the co-authors, publishing a work created in collaboration with others as a work created by oneself alone;

3) Signing the works of others without participating in the creation of works for the purpose of seeking personal fame and wealth;

4) Distorting or tampering with the works of others;

5) Plagiarizing the works of others;

6) Without the permission of the copyright owner, the work is used by means of exhibition, filming, or methods similar to filming, or the work is used by means such as adaptation, translation, or annotation, except as otherwise provided by this Law;

7) Failure to pay remuneration for the use of another person's work;

8) Leasing works or audio or video recordings without the permission of the copyright owner of a film work or a work created by a method similar to that of a film, computer software, or audio or video recording, or the rights holder related to copyright, except as otherwise provided in this Law;

9) Without the permission of the publisher, using the layout design of the books or periodicals they publish;

10) Without the performer's permission, live streaming or publicly transmitting their live performances, or recording their performances;

Article 49 of the Copyright Law of the People's Republic of China provides that if a copyright or copyright-related rights are infringed, the infringer shall compensate according to the actual losses of the right holder; Where it is difficult to calculate the actual losses, compensation may be given in accordance with the infringer's unlawful gains. The amount of compensation shall also include the reasonable expenses paid by the right holder to stop the infringement. Where the actual losses of the right holder or the illegal gains of the infringer cannot be determined, the people's court shall, on the basis of the circumstances of the infringement, make a judgment to give compensation of up to 500,000 yuan.