What are the commonly used principles for determining copyright infringement?

Now the protection of intellectual property rights in China is becoming more and more important, and many public houses are paying more and more attention to their intellectual property rights, and plagiarism is a manifestation of infringement of intellectual property rights, so is plagiarism a copyright infringement? Let's first understand what are the commonly used principles for determining copyright infringement? What are the commonly used principles for determining copyright infringement?

In judicial practice, the commonly used principles for determining copyright infringement are: 1. The dichotomy between thought and expression excludes the idea of a work 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 expression, not to ideas, processes, methods of operation or digital concepts themselves. 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. In addition, even if it is an expression of an idea, if it is in the public domain, for example, if it is a unique expression, the expression is also not within the scope of protection. 2. The Principle of Contact and SimilarityAfter separating ideas from expression, public domain and private rights, if two works are the same or similar, whether plagiarism can be judged 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. What are the commonly used principles for determining copyright infringement?

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.

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.

2. The principle of presumption of fault.

Legal basis: Article 1165 of the Civil Code of the People's Republic of China.

Where the perpetrator infringes upon the civil rights and interests of others and causes harm due to his fault, he shall bear tort liability.

Where it is presumed that the perpetrator is at fault in accordance with the provisions of law, and he cannot prove that he is not at fault, he shall bear tort liability.

The principle of determining copyright infringement and the principle of fault liability, if the infringer infringes on the copyright of others and causes damage due to its fault, it shall bear the liability for infringement.

Article 1165 of the Civil Code [Principle of Fault Liability]Where an actor infringes upon the civil rights and interests of others due to his fault and causes harm with accomplication, he shall bear tort liability.

Where it is presumed that the actor is at fault in accordance with the provisions of law, and he cannot prove that he is not at fault, he shall bear tort liability.

1. Which tort disputes are subject to the principle of no-fault liability?

1. Where a person who lacks or has limited capacity for civil conduct causes harm to others, the guardian bears no-fault liability.

2. If the staff of the employer causes damage to others due to the performance of work tasks, the employer shall bear the liability of no fault.

3. If the party providing personal labor services causes damage to others due to labor services, the party receiving the labor services shall bear the responsibility of no fault.

4. If the product is defective and causes damage to others, the producer and the seller shall not be truly jointly and severally liable, and if the seller is at fault for the no-fault liability, the ultimate responsibility shall be borne by the seller; If the seller is not at fault, the producer bears the ultimate responsibility.

5. In the event of a road traffic accident between a motor vehicle and a pedestrian or non-motor vehicle driver, the motor vehicle shall bear the responsibility of no fault.

6. If the pollutant causes damage to people due to environmental pollution, the polluter shall bear the responsibility of no fault.

7. In the highly dangerous liability, those engaged in highly dangerous operations, the operators and occupants of highly dangerous goods bear no-fault liability.

8. If the animal is raised and causes damage to a person, the animal keeper or manager shall bear the liability of no fault (but the zoo shall bear the presumption of fault liability).

2. What are the acts of 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) Failure to participate in the creation of works, but for the purpose of seeking personal fame and fortune, signing the works of others in a blind manner;

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 performance, or recording their performance;