What are the ways to determine copyright infringement?

What are the ways to determine copyright infringement? The crime of copyright infringement refers to the act of violating copyright management laws and regulations for the purpose of making profits, infringing on the copyrights of others without the permission of the copyright owner, and the amount of unlawful gains is relatively large or there are other serious circumstances. So what are the ways to determine copyright infringement?

Methods for determining copyright infringement.

1. Analysis of the Plaintiff's Work According to the provisions of Chinese law, the principle of automatic protection is adopted for the creation of copyright, that is, once the work is created, the 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. 2. Analysis of the allegedly infringing work and the defendant's use of the allegedly infringing workThe following two criteria may be applied to the analysis of the allegedly infringing work:

The first is contact, that is, the opportunity to contact the previous work, and the second is substantial similarity, that is, the part that should be protected by copyright is substantially similar. Among them, the latter is the focus of the determination. When determining whether the works of the plaintiff and the defendant are substantially similar, the part of the plaintiff's work protected by copyright should be compared with the corresponding part of the defendant's work to determine whether the two are substantially similar.

What are the ways to determine 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.

The determination of copyright infringement is as follows: 1. Analysis of the plaintiff's work According to the provisions of Chinese law, the principle of automatic protection is adopted for the creation of copyright, that is, once the work is created, the copyright is generated. Therefore, unlike the determination of intellectual property infringement of other types of state codes such as patents and trademarks, the determination of copyright infringement also involves the validity of rights. 2. Analysis of the allegedly infringing work and the defendant's use method, and analysis of the allegedly infringing work.

Copyright Law of the People's Republic of China

Article 47.

Radio and television stations have the right to prohibit the following acts without their permission:

Radio and television stations exercising the rights provided for in the preceding paragraph must not influence, restrict, or infringe upon others' exercise of copyright or copyright-related rights.

1. The fact of infringement means that the perpetrator uses the copyright owner's works, as well as performances, audio-visual products, and radio and television programs without the permission of the copyright owner and not in accordance with the conditions of use stipulated in the Copyright Law. Copyright infringement, without the consent of the author and other copyright owners, does not belong to the situation of fair use and statutory use, it is an unauthorized use of the work, and therefore a violation of copyright law. Such infringement may not only cause damage to the moral rights of others, but also may cause damage to the property rights of others, and may also damage the moral rights and property rights of others.

For example, illegal copying of other people's works may only infringe on the property rights of others, while counterfeiting of others' works often infringes on the moral rights and property rights of others at the same time.

2. The illegality of the act is an absolute right, and everyone is responsible for the obligation of inaction that cannot infringe on this right. When using copyrighted works, others must comply with the relevant provisions of the Copyright Law and other laws, and if the actor violates the provisions of the law, his behavior is illegal. As for works that are not protected by China's copyright law, works that have not obtained copyright, or "works" that have entered the public domain, there is no infringement problem when others use them.

3. The actor's subjective fault The so-called fault refers to the psychological state of the infringer about the tortfeasor's actions and consequences, including intentional and negligent forms. The vast majority of copyright infringements are intentional; There are also a few that can be constituted by both intent and negligence. Distinguishing the form of fault has a certain significance in determining the legal liability of the infringer.

Generally speaking, the legal liability for intentional tort is heavier than the legal liability for negligent tort.

1. What are the constitutive elements of copyright infringement?

From the perspective of the constitutive elements of tort, it should be analyzed from the two aspects of "fault" and "no fault", and when the principle of fault induction is applied, its composition must have the four elements of illegality of the act at the same time: (the act of inflicting harm), the fact of damage, the causal relationship and the fault. As far as the tort based on the principle of no-fault liability is concerned, since it does not consider whether the person is at fault or not, fault is no longer a constitutive element of this type of tort.

The act that caused the damage must be illegal in nature for the perpetrator to be liable for compensation. Otherwise, even if there is a fact of damage, the perpetrator cannot be held liable for compensation. Regardless of whether the activities carried out by the actor infringe upon the interests of the copyright owner or whether the activities carried out by the actor constitute a major threat to the interests of the copyright and will inevitably harm the interests of the copyright owner in the future, it constitutes copyright infringement.