Part V. Copyright Law of Intellectual Property 2.




Release time:2016-10-25

The concept of copyright law and the object of adjustment:

The copyright law refers to the general name of the legal norms that regulate the social relations that occur in the production, dissemination, utilization and management of copyright. Accordingly, the social relations regulated by the Copyright Law mainly include the following:

1. Social relations arising from the confirmation of the ownership of copyright.

2. Social relations arising from the dissemination of works.

3. Social relations arising from the use of the work.

4. Social relations arising from the management of works.

The above-mentioned social relations regulated by the Copyright Law can be divided into two categories in terms of legal nature:

First, the social relationship between equal subjects. The above-mentioned social relations arising from the confirmation of the ownership of copyright, the dissemination and use of works all take place among the copyright owners, neighboring rights holders and the public of equal subjects, and their legal status is equal, therefore, such legal relations mainly adopt the adjustment method of civil law, which fully embodies the principle of autonomy of the parties.

Second, the social relations between non-equal subjects. This kind of social relationship is mainly the vertical management relationship between the copyright management organ and the copyright owner. Such social relations involve not only the private interests of the creators, disseminators and users of the works, but also the public interests of the state and society. This kind of social relationship reflects the management and supervision of the copyright owner's activities by the state organs. 


Overview of the origin and development of the copyright system:

Copyright system is the product of the development of printing technology, commodity economy and freedom of publication. Before the invention of printing, it was impossible for a large number of works to be copied, and it was impossible for plagiarists to obtain greater economic benefits based on plagiarizing other people's works. Therefore, the legal protection of copyright is impossible. But after the advent of printing, book piracy became possible, and the lucrative profits of the publishing industry made some unscrupulous businessmen pass."Pirated" books for profit. In order to protect their own interests, publishers demanded exclusive reproduction rights for the books they published in order to stop piracy; at the same time, the feudal rulers also realized that the publishing industry must be included in the scope of their control to prohibit the spread of revolutionary ideas and maintain their dominance. status. So the franchise system began to appear. This exclusive publishing right granted by the monarch or local government is a feudal privilege, not a right generated by law. It focuses on protecting the interests of publishers and is essentially different from the copyright system.

The protection of the privileges of book publishers and the lure of the lucrative publishing industry make profit-seeking book publishers ignore the interests of authors and often publish their works without their consent. After the British bourgeois revolution, there was a growing demand for the protection of the interests of authors, who believed that it took time and labor for authors to create works, and that they should be paid as well as other fruits of labor. At the same time, book publishers recognized that the feudal form of concession was no longer suited to the need to protect the publication of printed matter and demanded the adoption of a long-standing written law to protect their exclusive rights. In this historical context, the British ParliamentIn 1709, a decree was passed to grant authors and their purchasers the right to a certain period of time in respect of their printed books for the purpose of encouraging the creation of knowledge, referred to as the Queen Anna's decree. This law is regarded as the first copyright law in the modern sense in the world, and it is a milestone in the history of the development of world copyright. Its revolutionary content is reflected in the establishment of copyright with the nature of legal private property rights, the recognition of the author as the origin of copyright protection, and the protection of published works with a time limit. However, the protection of "Queen Anna's Decree" only involves the property rights of written works, and does not involve the protection of the author's spiritual rights. It was not until the French "Author's Rights Law" was promulgated in 1793 that the copyright system that emphasized the protection of the author's spiritual rights officially appeared.


The emergence and development of China's copyright system:

As early as the Southern Song Dynasty Shaoxi years (1190 -1194) there was a concession system, but for various reasons, this feudal concession lasted for more than 800 years in Chinese history but failed to evolve into a copyright system in the modern sense. The first copyright law in the history of our country is the "Qing Copyright Law" promulgated by the Qing government in 1910. There are 55 articles in total. The main content involves the definition of copyright, the scope of works, the author's rights and the period of protection, and the procedures for obtaining copyright. And copyright restrictions. For the first time in the history of China, the Copyright Law of the Qing Dynasty established the legal status of authors protected by copyright; the rights of authors protected include property rights and personal rights. The law was invalidated by the fall of the Qing Dynasty. Subsequently, the Beiyang government promulgated the "Copyright Law" in 1915, and the Kuomintang government promulgated the "Copyright Law" in 1928. These two copyright laws are basically copies of the "Copyright Law of the Qing Dynasty. Since then, the Legislative Yuan of the Kuomintang government has made major amendments to its copyright law in 1944 and 1948. The law is still applicable in Taiwan, and has been amended many times.

After the establishment of the the People's Republic of China, it formulated a series of press, publication and copyright documents, and made principled provisions on copyright protection and remuneration standards, but at that time, copyright was not clearly protected by law as a civil right.

After 1978, the reform and opening-up policy provided good social, economic and political conditions for the development of the intellectual property system. The "General Principles of Civil Law" in 1986 listed intellectual property rights as an important part of civil rights for the first time, and clearly stipulated that the copyrights of citizens and legal persons are protected by law, which laid a solid foundation for my country's copyright law.

On September 7, 1990, the 15th meeting of the Standing Committee of the Seventh National People's Congress passed the the People's Republic of China Copyright Law, which came into effect on June 1, 1991. This is the first copyright law of New China. Although this law itself has certain shortcomings in structure and content, it marks the establishment of a modern copyright protection system in China.

On October 27, 2001, in the context of China's imminent accession to the World Trade Organization, the Standing Committee of the National People's Congress passed the "Decision on Amending the" the People's Republic of China Copyright Law ", which made a more comprehensive revision of the" Copyright Law. The revised Copyright Law not only regulates the new problems arising from the development of information network technology, but also improves the level of copyright protection in accordance with the requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights. On February 26, 2010, the Copyright Law was revised for the second time, but only fine-tuning individual provisions. At present, the third revision of the Copyright Law is in progress.


the origin of china's current copyright law:

After years of construction and development, my country's copyright law system has a relatively complete system, which roughly includes the following four parts:

(I) law

The laws in the copyright system mainly includeThe Copyright Law of 1990 is the core of the copyright law system. In addition, the General Principles of Civil Law of 1986, the Contract Law of 1999, the Anti-Unfair Competition Law of 1993, and the Anti-Monopoly Law of 2008 are all important sources of copyright law.

(II) administrative regulations

Administrative regulations mainly include the Implementation Regulations of the Copyright Law(re-promulgated on August 2, 2002 and revised on January 8, 2011), Regulations on the Protection of Computer Software (re-promulgated on December 20, 2001 and revised on January 8, 2011), Regulations on the Customs Protection of Intellectual Property Rights (re-promulgated on December 2, 2003 and revised on March 24, 2010), Regulations on the Protection of the Right of Information Network Communication (promulgated on May 18, 2006), etc.

(III) judicial interpretation

The judicial interpretation of the Supreme People's Court on the copyright system mainly includes the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Copyright Civil Dispute Cases" (Adopted on October 12, 2002), Interpretation on Several Issues Concerning the Application of Law in Hearing Cases Involving Computer Network Copyright Disputes (adopted on November 22, 2000, revised twice on December 23, 2003 and November 20, 2006), etc.

(IV) international conventions

There are two main types of international conventions on copyright that my country has acceded to: one is multilateral treaties, and the other is bilateral treaties. At present, the multilateral treaties that China has acceded to mainly include: Agreement on Trade-Related Aspects of Intellectual Property Rights (Accession on 11 December 2001), the Berne Convention (accession on 15 October 1992), the Universal Copyright Convention (accession on 30 October 1992), the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonograms (accession on 30 April 1993), etc. The bilateral treaties signed by my country to protect copyright mainly include: "Sino-US Intellectual Property Protection Memorandum of Understanding", "Sino-Russian Intellectual Property Cooperation Agreement" and so on.


the basic principles of china's copyright law:

Copyright Act No.Article 1 clearly states: "in order to protect the copyright of authors of literary, artistic and scientific works, as well as the rights and interests related to copyright, encourage the creation and dissemination of works conducive to the construction of socialist spiritual and material civilization, and promote the development and prosperity of socialist culture and science, this law is formulated in accordance with the Constitution." Accordingly, the basic principles of copyright law are reflected in the following aspects:

Principles of (I) protection of authors' rights and interests

The author is the most important subject of copyright, and the protection of copyright is mainly to protect the legitimate rights and interests of the author and stimulate his enthusiasm for creation. Any work permeates the author's labor, publicizes the author's personality, embodies the author's personality, and is an inalienable wealth that the author should enjoy. To protect the rights and interests of authors, specifically, to protect the personal rights and property rights of authors. In adjusting the relationship between authors and users and even the public, the copyright law puts the protection of the rights and interests of authors in the first and core position. To this end, the Copyright Law uses a large number of provisions to provide for the various rights and interests of authors and the protection measures and remedies when the rights and interests of authors are infringed.

Principles of (II) Encouraging the Dissemination of Works

Communication is a bridge between the creation of works and the use of works, although communication itself is different from the creation of works.But it can promote excellent works in an appropriate way, at a reasonable cost and in the shortest time, so that the creators of the works can realize the property benefits and repay their hard work. To this end, the "Copyright Law" clearly stipulates the legal rights of disseminators and legal licensing systems, aiming to fully protect the interests of disseminators of works, encourage the dissemination of works, and promote cultural prosperity.

(III) Principle of Harmonization of Author's Interests and Public Interests

Most of the works are developed on the basis of inheriting and drawing lessons from the excellent achievements of predecessors. Therefore, the works are not only the author's labor results, but also a part of the spiritual wealth of the whole society. In essence, the protection of the author's interests is consistent with the protection of the public interest. By protecting the interests of authors, authors can be encouraged to create more and better works, So as to enable the public to obtain greater and more benefits, and then promote the progress of the whole society and the development of science and culture. For this reason, the Copyright Law not only systematically stipulates the rights and protection measures of authors, but also stipulates the protection period, fair use and legal license of copyright in order to safeguard the interests of the public. it makes necessary restrictions on the rights of authors, thus balancing the interests between authors and the public and realizing the coordination of the two interests.

The principle of (IV) compliance with the basic requirements of international copyright protection

In terms of copyright protection, after hundreds of years of development and refinement in the world, some basic norms generally accepted by the world have been formed. These norms are embodied in the Berne Convention, the World Copyright Convention, and the Trade-related Intellectual Property Agreement. "And other international conventions. Although China has not yet participated in the above-mentioned international conventions when formulating the copyright law, it has paid attention to the respect for international practices and the absorption of the basic norms established by the relevant international conventions. And our country inThe revision of the Copyright Law in 2001 fully considered the basic principles and minimum requirements of the "Agreement on Trade-Related Aspects of Intellectual Property Rights" and other relevant international conventions.

Source:WeIP intellectual property ecosystem