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Abstract摘要
This article systematically discusses the problem of network infringement in American copyright law. This paper, combining theory with practice, comprehensively studies the phenomenon of infringement in U.S. copyright law, focusing on the problem of network infringement in U.S. copyright law by comparing the method of analysis, the method of case analysis and the method of empirical analysis and dialectical analysis. Through further study and comparison, we further discuss and think about the problem of network infringement in China's copyright law.
本文由两部分组成。第一部分介绍了美国版权法中一般侵权问题的研究。在明确侵权意图的情况下，通过两个步骤来确定侵权的构成。在版权法中使用侵权是合理的。与我们的版权法中列出的合理使用案例不同，“美国版权法”规定了合理使用原则的四个非排他性因素，并通过司法判例进一步增强和完善了合理使用原则。对于版权侵权救济，美国版权法主要通过三种救济手段来维护版权所有者的利益。第二部分介绍了美国版权法中网络侵权问题的研究。在分析了网络传播侵权现象后，本文重点论述了网络侵权的三种侵权原则，即侵权原则，原则。代位权和侵权原则。由于抢劫原则是美国最高法院2006年以后处理网络侵权案件的最新申请原则，因此比较了引诱侵权原则的原则和先前的协助侵权原则和代位权侵权原则，这四点都深思熟虑。网络侵权存在很多问题。本章选择网络中四个最突出和最重要的侵权现象来分析网络侵权问题。期待更深入地了解网络侵权问题。
The paper consists of two parts. The first part of the paper introduces the research on the general infringement problem in American copyright law. In the case of a clear infringement intent, through two steps to identify the composition of infringement. The use of infringement in copyright law is reasonable. Unlike the fair use cases listed in our copyright law, the US Copyright Act sets out four non-exclusive factors of the principle of fair use and further enhances and improves the principle of fair use through judicial jurisprudence . For copyright infringement relief, the US copyright law is mainly through three kinds of relief means to safeguard the interests of copyright holders. The second part of the paper introduces the research on the problem of network infringement in American copyright law.After analyzing the phenomenon of network transmission infringement, this paper focuses on the three infringing principles in network infringement, namely, the principle of infringement, the principle of subrogation and the principle of infringement. Since the principle of looting is the latest application principle of the US Supreme Court to deal with the case of network infringement after 2006, the principle of luring the infringing principle and the previous principle of assisting the infringement and the principle of subrogation infringement are compared , and the four points are deeply thought.There are many problems in network infringement. This chapter chooses four most prominent and most important infringement phenomena in the network to analyze the network infringement problem. to look forward to a deeper understanding of the issue of network infringement.
1 Introduction简介
数字技术和互联网的进一步发展将导致版权保护方面的新问题。面对数字网络技术的飞速发展，传统版权法受到了前所未有的挑战，作品的创作方式发生了变化，作品的表现形式发生了变化，工作方式也发生了变化。在路上。对于数字音乐，网络作品，网络软件，传统版权一直无法解释，网络服务提供商也不同于以往的出版商。旧的平衡被打破需要建立新的平衡，旧的版权保护制度显然无法满足新的需求，网络传播权，技术措施，合理使用新名词，是各种利益游戏的产物。这将加深版权所有者，互联网运营商和互联网技术开发者，互联网用户之间的矛盾。美国版权法不能完全解决这些矛盾，最高法院将引入新的法律和司法判例来协调这些问题，毕竟技术是要发展的，用户的合理使用必须得到满足，这样只有牺牲部分版权所有者的利益，以满足现实的需要。美国法院的司法判例和政府引入的相关网络保护的法律措施不仅会影响知识产权界在世界网络中的思维方式，而且会对中国产生新的深远影响。
The further development of digital technology and the Internet will lead to new problems in copyright protection. In the face of the rapid development of digital network technology, the traditional copyright law has been an unprecedented challenge, the creation of works in the way of change, the performance of the work in the form of changes in the way the work of moral changes in the way . For digital music, network works, network software, the traditional copyright has been unable to explain, network service providers are also different from the past publishers. Old balance is broken need to establish a new balance, the old copyright protection system is clearly unable to meet the new needs, network communication rights, technical measures, rational use of new nouns, is the product of various interest games. This will deepen the contradiction between copyright owners, Internet operators and Internet technology developers, Internet users. US copyright law can not completely solve these contradictions, the Supreme Court will introduce new legal and judicial jurisprudence to coordinate these issues , after all, technology is to develop, the user's reasonable use of the requirements must be met, so that only Sacrifice part of the interests of copyright owners to meet the needs of reality. Judicial jurisprudence made by the United States courts and the legal measures of the relevant network protection introduced by the government will not only affect the thinking mode of the intellectual property community in the world network, but also have a new and far-reaching impact on China.
2 Infringement of copyright in the United States
2.1 Determination of copyright infringement
Article 106 of the US Copyright Act gives the copyright owner five exclusive rights: reproduction, interpretation, distribution, performance and exhibition.Article 602 of it gives the copyright owner the right to control copies of copyrighted works and sound recordings that are copyrighted from the United States. According to the copyright law 501 any violation of the rights of the copyright owner's behavior is an act of tort. The process of copyright infringement is very complicated.
In judicial practice, it is generally used a method of "two steps" which is used in the “Arnstein” case to confirm whether a work infringes the copyright of another work. That is, in the case of the trial, we must first determine whether the defendant copied the plaintiff's work. Secondly, whether the copy has reached the level of illegal possession, that is to say, the existence of the same or substantial similarities between the two works .
Infringement is divided into two steps:
Step 1: Copy
In the case of "Arnstein", the defendant copied or copied the plaintiff's software work in three ways. The first is proof by direct evidence. However, the defendant directly admitted that the original copy of the plaintiff's software work is almost non-existent. The second is the defendant's contact with the plaintiff's work, the defendant's software works and the plaintiff's software work has the similarity of expression. The third is that there is a significant similarity between the defendant's software work and the plaintiff's.
In the second "post-exposure similarity" replication process, contact means that the defendant has the opportunity to see, understand or feel the copyright of the plaintiff's software work. In general, the widespread spread of the plaintiff's work, or the public's access to works through bookstores, libraries, radio, television, etc., can be concluded that the defendant contacted the plaintiff's work. Contact can be directly or indirectly. In the 2010"P&M" case, the plaintiff created software using network in France as a part of a operating system, but the a network protocols and security module were less successful . The defendant in 2011 in Apple created a PC called "apple", won the commercial success. The court found that a publisher had dealt with the plaintiff's work in the 2011s , and the defendant had contacted the plaintiff's work through the publisher. The Court of Appeals for the Second Circuit stated in the judgment that the connection of the plaintiff to the third aspect of the defendant could adequately prove that the accused had come into contact with the plaintiff's work. The similarity means that the work of the defendant is similar to that of the plaintiff, except that it is interpreted as copying and can not have any other explanation. In the process of proving similarity, the court allowed to compare the similarities and differences between the two works. At the same time the court also allowed the use of evidence provided by experts to evaluate the similarity between the two works.
It is important to note that in the case of a "contact similarity" infringement case, only significant similarity is not enough and must be accompanied by the possibility of exposure to the plaintiff's work. In the 1984 "Serra" case, despite the expert's evidence that the plaintiff's work had a lot of similarity to the defendant's work, the jurisprudence did not determine the defendant's infringement, even though the jury determined that the two works were substantially similar The The reason is that the plaintiff did not prove that the defendant approached their work. Significant similarity only helps to indicate the possibility of contact but can not consider it in isolation. |
