□ Yong Wang
Editor's note a few days ago, according to the instructions of the State Council, "Copyright Law" revision of the third round was officially launched. The amendment is our government to address and resolve the new communication technologies and the impact of the impact of copyright industries and further promote coordination and development of related industries, the implementation of National Intellectual Property Strategy, the initiative, a comprehensive, systematic way to China "Copyright Law" revised and improved. Open edition "I suggest amending the law" section, invited industry experts, academics, judges, lawyers and other relevant copyright owner, will own the "copyright law" applications encountered in practice be set on legal issues, and to amend the law proposals.
Establishment and development of the copyright system has always been accompanied by changes in expression and communication technologies. Almost every time the emergence of new technologies related to copyright, the interests of both the original balance is broken, leading to the Copyright Act to make corresponding adjustments. In particular, since the modern years, this adjustment becomes more frequent and intense on the one hand, expressed in legislation on copyright law constantly changes, on the other hand, in judicial practice to protect the interests of right holders continue to be strengthened. How to improve our system of copyright law, I have a few suggestions.
★ recommend the right system of copyright: to re-build
Copyright content is the core of the legal system of copyright, copyright is a property rights system is the core of the core. But in the new communication technologies (such as network technology) under the impact of the use of works continuously to strengthen, expand to the right of reproduction as the center of copyright property rights system has been unable to meet its development needs. Copy rights legislation aimed at controlling the spread of copies of works, copy only the spread of conditions, does not in itself constitute a right to damage the interests of the market. In the digital age, the right of reproduction as the basis of copyright property rights should also be the stage of history. Purpose of the legislation and interpretation of the right people the right to appeal does not control the interpretation of the act itself, but rather control the spread of derivative works. Interpretation of works not only spread the interests of rights holders and moral interests of the market without any damage, human rights should not be included in the control. In addition, the context view, all the adaptation, translation and compilation of behavior were all included in the control of copyright are not rational, but also with the Copyright Law Article 12, Section 14 of the inconsistency. In addition, to protect the right of integrity, the right to amend, there are overlapping, categories of rights interpretation of the regulations are not conducive to the exercise of such rights. Determine the content of property rights the most fundamental factor is the right to protect the unique nature of the object itself, characteristics and its use, and use essentially the property interests of the implementation. So China's copyright system needs to find a way to cover a variety of work-based property interests to achieve the right way, and to facilitate copyright and balance between the interests of the public as the goal, re-build the right system of copyright.
★ attribution system works and proposed works: a comprehensive sort
China's current copyright law, ownership rights in the work system provides for a more complicated, there are natural works, legal works (including units of work), job works, commissioned works, co-works, etc., the right to work in different types of ownership requirement, there Some cross or conflict, difficult to operate or do not fit the actual social life of the place. In addition, work on the attribution of some of the provisions too much emphasis on the composition of administrative intervention, to restrict or prohibit the party autonomy, is not conducive to the market mechanism to play.
Ownership relative to the work system, China's copyright system works system is also more complex. For example, practical art, not only caused the lack of legal protection of the laws of such work absence, but also resulted in protection of the differentiated type of work (with reference to foreign works of applied art "on the implementation of the provisions of international copyright protection treaties") at the same time, practical works of art and art also exist between the closely linked, is introduced as a separate category or included in the work areas of art, it is necessary to be studied. In reality, the protection on the database will involve compilation of works, reasonable definition of the software works, films (in a similar way to the creation of works of film) is a good deal is not yet defined the specific content (such as music, script, lyrics, etc.) creator with producers, directors and other legal relations between the interests and.
Copyright licensing system and protect the right of integrity system ★ suggestions: regulation of new infringing the right to amend the scope to expand
Copyright license is the right to exercise the right to benefit from one of the most important ways. At present, although China's copyright law provides copyright licensing system, but there are some shortcomings of these provisions, such as more stringent requirements to delegate, work a total of poor people's authorization, the licensee's lack of clear provisions to protect the rights, to a certain extent affected the normal exercise of rights. Therefore, to protect the rights of copyright holders need to complete the exercise mechanism and properly solve the right people, delegate, is authorized to practical problems such as people's right to appeal.
Traditional copyright law, copyright belongs to the right of integrity an important part of personal rights, mainly for the relief work of others distortion, mutilation. With the Internet and cloud technologies, the traditional profit by copying and distribution of the software business model has gradually been SAAS (Software as a Service, Software as a Service) replaced. With the popularity of SAAS, unlike traditional infringement of the right of reproduction and distribution rights of the new model resulting infringement. That is infringement of its software by the operating environment, modify memory, blocking software in order to achieve the purpose of calling and running. This new way of software copyright infringement of personal rights and property of people will result in significant losses. Copyright law revision in order to ensure the normal and orderly development of industry, necessary to regulate this new way of infringement, to expand the right to modify the scope of the destruction, invasive software operating environment, changes in work patterns as a violation of the performance of software changes rights violations, or the appropriate technical measures to expand the scope of the illegal interception of data memory, and provide tools to change the work function is defined as the illegal acts of violations of technical measures to crack, to crack down on illegal external act, under the conditions of new technologies to enhance protection of the software works.
Copyright fair use ★ recommendations: adjustment of model legislation and international treaties effective interface
Copyright law "fair use" copyright system is a major limitation on the copyright system, the concentrated expression of the social function of copyright law, namely the protection of authors and other copyright interests while taking into account the public interest. Currently, fair use in copyright law has become a national traffic system. China's copyright law fair use provisions of 12 cases. To meet the development of network technology, China's 2006 implementation of the "Information Network Transmission Right Protection Ordinance," the network environment, the rational use of responded. However, with digital communication technologies, especially the rapid development of network technology, China's copyright law on the rational use of the system in the scope and conditions of use and so there is not strict, not specific and difficult to operate defects. Judicial practice, different courts have different specific understanding of fair use cases, and even some contradictions, the rational use of the system in a networked environment mutated and distorted. Therefore, improving the system of copyright fair use of works must leave enough space to facilitate the formation of a "harmonious coexistence, mutual benefit and win-win" environment of online copyright. Specifically, the proposal to further regulate the rational use, in particular the rational use of the network environment, and consider modifying the rational use of the system to adjust our model legislation, international treaties and copyright of the interface to wait.
Statutory licensing system and compensation for copyright infringement ★ recommendations: expand the range of standard
As a statutory copyright license is an important limitation of rights system, its protection through balanced way, to promote scientific, cultural development, reduce transaction costs, facilitate quick transactions, increase social wealth, while protecting the copyright holder gains. China's copyright law provides for the compulsory teaching of the textbook use of the work, newspapers reproduced, poverty alleviation and other legal license. However, network technology impacts, and supporting system is imperfect, judicial practice has caused some controversy in recent years occurred in Internet copyright infringement case in large part because of reproduced works, dissertations, journal articles database, 'digital library "Using another's work and so caused," Google Library "in recent years, the rise of distance education is also facing the same problem. Network environment, while the mass of work, but the right people is extremely fragmented, and relatively difficult to exercise their rights individually. On the other hand is a huge user base, separate from rights holders and users to high transaction costs, and provide intermediary services database service providers are also facing the risk of copyright infringement. Under such circumstances, it is necessary to rethink the scope of the statutory licensing cases, expand the "digital library" of the range, for example, Superstar, Tsinghua Tong Fang, Articles and other commercial providers of digital information, to adapt to scientific and technological development and the people access to knowledge and information needs, and work to develop or revise standards and statutory licensing payment mechanisms to meet the communication needs work under the network environment.
Calculation of damages in intellectual property cases the standard has been the focus of the parties argue, the trial court is also difficult problems. Calculation of damages, the Copyright Law Article 48 provides for determining infringement of copyright and related rights of the three methods of calculating damages, the "right people are actually lost," "infringer illegal gains" and "500,000 yuan within the scope of the statutory compensation. " The first two is to choose the applicable burden of proof are the right person, if the right person can not prove "actual loss" or "infringement of income", the judge will be based on the parties or on its application within the statutory discretion. Judicial practice, due to the absence of a more uniform standards, local standards of the courts is a large difference in the reasonable standards for determining tort there are many problems, the need to pass legislation make provision for compensation for infringement, such as reasonable to determine the different types of work tort standards; reasonable person standard loss or infringement of the rights of people from the calculation; how to reasonably regulate the right to reasonable expenses and reasonable calculation of the standard; considering amending the Copyright Law Article 48, paragraph 2, provides that "statutory compensation," the lower limit or limit the need. In addition, the introduction of punitive damages is not a mechanism is also worth investigation.
Copyright infringement systems and Internet service providers immunity mechanism ★ recommendations: the establishment of specific criteria to determine
Network to determine the rules of copyright and exemption rules have been the focus of controversy in recent years, although the relevant judicial interpretations also made a complete explanation for technological innovation to build the initial responsibility avoidance mechanism (haven terms), but the current mechanism to avoid responsibility for the practical effect of not ideal. Such as indirect responsibility for the specific constituent elements, especially with regard to the subjective perception of cognitive elements, the application of vicarious liability are not the same understanding of the formation. July 2010, "Tort Law" further exacerbate the dispute. Legal uncertainty, the development of the ICT industry has a huge constraints. Recommended the adoption of amendment of the law, for some elements to establish a specific criterion to solve the problem of varying the administration of justice.
(Department of Beijing Jincheng Law Firm senior partner, the National Copyright Administration, "copyright law" the third revision of the Expert Committee)
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