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Article 16 of the Copyright Law: A work created by a citizen to complete the work tasks of a legal person or other organization is a service work, and except for the provisions of paragraph 2 of this article, the copyright shall be enjoyed by the author, but the legal person or other organization has the right to use it preferentially within the scope of its business. Within two years of the completion of the work, without the consent of the unit, the author shall not permit a third party to use the work in the same way as the unit.
1) Works of service such as engineering design drawings, product design drawings, maps, computer software, etc., that are primarily created by using the material and technical conditions of legal persons or other organizations, and for which the legal person or other organization bears responsibility;
2) Service works that are provided for by laws, administrative regulations, or provided for in a contract for which legal persons or other organizations enjoy copyright.
From the above legal provisions, it can be seen that the "Machine Tool Repair and Commissioning" compiled by Zhang is not a work created to complete the work tasks of the factory, so it is not a service work. Although it takes advantage of its work, it does not mainly use the material and technical conditions of the factory to create, and the factory bears the responsibility, and there are no laws, administrative regulations or contracts stipulating that the copyright is enjoyed by the factory. Therefore, the copyright of the book belongs to Zhang and has nothing to do with the factory.
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c.The copyright of the book is enjoyed by Zhang, and the factory has the right to use it first within its business scope.
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Legal Analysis: Copyright disputes refer to disputes between the copyright owner and the user of the work or any other third party over the exercise of copyright. Copyright disputes include copyright infringement disputes and copyright contract disputes.
Legal basis: Copyright Law of the People's Republic of China Article 55 When the department in charge of copyright investigates and deals with suspected infringement of copyright and copyright-related rights, it may inquire about the relevant parties, and investigate the circumstances related to the suspected illegal acts; Carry out on-site inspections of the places and items where the parties or persons are suspected of violating the law; Consult and copy contracts, invoices, account books and other relevant materials related to the suspected illegal acts; Places and items suspected of illegal conduct may be sealed or seized. When the department in charge of copyright exercises the authority provided for in the preceding paragraph in accordance with law, the parties shall assist and cooperate, and must not refuse or obstruct it.
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There are several main systems for acquiring copyrights: registration, automatic acquisition, and other acquisitions.
1) Registration and acquisition systemThe registration and acquisition system refers to the registration as a condition for obtaining copyright, and the copyright can only be generated after the work is registered. This principle of copyright registration is also known as the doctrine of registration or the doctrine of registration. The emergence of the registration acquisition system has played a positive role in history.
The implementation of the registration acquisition system can clearly and effectively prove the identity of the copyright owner, which is conducive to the timely handling of copyright disputes and the protection of the legitimate rights and interests of the copyright owner. However, the registration system does not adequately protect works that are not registered in a timely manner, nor does it protect works from countries that do not have a copyright registration system. This was contrary to the spirit of the Berne Convention, which was why most countries in the world did not adopt such a system.
A number of countries with registration acquisition systems have also abandoned this practice in favour of automatic acquisition systems.
2) Automatic Acquisition SystemThe automatic acquisition system refers to the existence of the legal fact that the creation of the work is completed and the copyright is naturally obtained, without the need to perform any formalities. The principle on which this system is based is also known as the principle of automatic acquisition of copyright or the principle of automatic protection. This is the principle established by the Berne Convention, and it is also the principle of copyright acquisition established by the copyright laws of most countries in the world.
The advantage of the automatic acquisition system is that once a work is created, it can be protected in a timely manner, which can effectively stop copyright infringement and has a high level of protection. However, the disadvantage is that in the event of a copyright dispute, it is difficult to obtain evidence for unregistered works, so the copyright laws of some countries are supplemented by the establishment of a voluntary registration system. China's "Copyright Law" adopts an automatic acquisition system in the acquisition of copyright.
Article 2 of the Copyright Law stipulates that works of Chinese citizens, legal persons or other organizations, regardless of whether they are published or not, shall enjoy copyright in accordance with this Law. That is, copyright arises from the date of completion of the creation of the work and is protected by the copyright law.
3) Other acquisition systems refer to the different regulations of different countries, and other acquisition systems mainly include the following three categories:
1) The copyright can only be obtained after the work has been fixed with a tangible object. This system is the case in the copyright law of the United States.
2) Copyright mark acquisition system. This system is used in the Universal Copyright Convention, which provides that all published works should be marked with copyright, otherwise they will be considered to be in the public domain. The copyright notice includes the name of the copyright owner, the year of first publication, and the abbreviation C of the English copyight with a circle to represent the copyright.
3) Publishing acquisition system. That is, according to the principle of territoriality, the first publication of a work in a country is taken as the criterion for obtaining copyright. For example, the third paragraph of Article 2 of the Copyright Law of the People's Republic of China stipulates that if a work of a foreigner or stateless person is first published within the territory of China, he or she shall enjoy copyright in accordance with this Law.
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Legal analysis: The resolution of copyright disputes is as follows: 1. Settlement.
The settlement is initiated by the parties themselves, and is not directly constrained and governed by judicial procedures and judges' powers. In some cases, the parties may be able to reach a settlement based on the provisions of precedent and relevant law, which minimizes the social costs of resolving the dispute. 2. Mediation. Mediation is slightly more troublesome than settlement, and mediation can be carried out through lawyers, mediation committees, etc.
Mediation is a method of settlement of disputes between the parties by agreement on the basis of mutual understanding in accordance with the principle of voluntariness. Copyright dispute mediation refers to a way for parties to a copyright dispute to negotiate and resolve civil copyright disputes under the auspices of a mediator, generally referring to mediation outside of litigation. Whether it is a copyright infringement dispute or a copyright contract dispute, both parties can resolve the dispute through mediation.
3. Arbitration. Arbitration is a legal act in which an arbitration institution resolves copyright disputes in accordance with the law in accordance with the arbitration clause. The arbitration process is similar to, but simpler and quicker than the judicial process.
Arbitration of copyright disputes refers to a system in which the parties to a copyright dispute voluntarily submit the relevant disputes to an arbitration institution in accordance with the arbitration agreement reached before or after the occurrence of the dispute, and the arbitration institution makes a judgment and ruling on the facts, rights and obligations of the dispute in the capacity of a third party. 4. Litigation. Litigation is a method in which the people's court resolves copyright disputes through trial procedures.
Although it takes a lot of time, litigation is the most extensive and important way to resolve copyright disputes.
Legal basis: Article 60 of the Copyright Law of the People's Republic of China Copyright disputes may be mediated, or they may apply to an arbitration institution for arbitration in accordance with the written arbitration agreement reached by the parties or the arbitration clause in the copyright contract. If the parties do not have a written arbitration agreement and have not entered into an arbitration clause in the copyright contract, they may directly file a lawsuit with the people's court.
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There are a few key points to figure out:
1. Did Zhang use the time at work and the tools of the unit to make a work?
2. Does the content of the book involve some technical secrets of this unit?
If both of these points are possessed, the copyright must be Zhang's, but some of the benefits obtained must be attributed to the unit.
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