The fourth part of the copyright law of intellectual property rights 1.




Release time:2016-10-25

the concept and characteristics of copyright:

Copyright refers to the exclusive rights enjoyed by copyright owners in literary, artistic and scientific works in accordance with the law. Copyright in a broad sense also includes neighboring rights, such as the rights of performers, producers of audio and video recordings, broadcasting organizations and publishers. 

As a civil right, copyright is an important part of intellectual property, which has the commonness of intellectual property such as immaterial, proprietary, temporal and regional of the object. However, compared to industrial property rights, copyright has the following five characteristics:

Automaticity arising from (I) rights

Copyright is automatically acquired on the basis of the completion of the creation of the work and generally does not require any form of registration or registration procedures. The acquisition of patent rights and trademark rights shall be applied to the relevant administrative department, and shall be subject to examination and approval, registration and announcement.

The Extensive Subject of (II) Rights

According to the provisions of China's Copyright Law, the subject of copyright rights can be natural persons, legal persons, other organizations or countries. At the same time, the subject of copyright is not restricted by capacity and nationality, and minors and foreigners can become the subject of copyright.

Diversity of Objects of (III) Rights

The works protected by copyright have the characteristics of diversity, including: written works, oral works, music works, drama works, quyi works, dance works, acrobatic works, art works, architectural works, photographic works, film and television works, graphics and model works, computer software, etc. These works involve many fields such as literature, art and science. In contrast, the manifestations and areas involved in the object of patent and trademark rights are more limited, such as the object of patent right is the technical scheme or design scheme of the product or method in the industrial field, while the object of trademark right is the specific mark used for goods or services in the commercial field.

Complexity of the content of (IV) rights

The content of copyright rights is extremely rich, and China's Copyright Law lists a total4 personal rights of works and 12 property rights of works. At the same time, due to the diversity of the object of copyright, the content of different copyright is not the same. The rights of other intellectual property rights, such as patents and trademarks, are relatively simple and mainly involve property rights.

Relative exclusivity of (V) rights protection

Patent and trademark rights are absolutely exclusive. Only one patent can be granted for the same invention-creation; if two or more applicants apply for registration of the same or similar trademarks on the same or similar goods, one of the trademarks shall be approved according to law and the other registration applications shall be rejected. Copyright is relatively exclusive, and it does not exclude others from obtaining copyright for the same or similar works independently created by themselves. 


Comparison of copyright and related concepts:

(I) Copyright and Copyright

From the history of the development of the copyright system, copyright and copyright are not exactly the same concept. Copyright (copyright) is a common appellation in common law countries. It was first produced as a right to control the reproduction of works. It is only a property right. The subject can be either a natural person or a legal person. Copyright is a common term used in civil law countries. It is the unity of the author's spiritual rights and property rights. In many countries, only natural persons can become authors. However, with the signing of international conventions on the protection of copyright, some common law countries began to protect the spiritual rights of authors with their copyright laws, and civil law countries also paid more attention to the property content of copyright, and the difference between copyright and copyright gradually faded. Article 57 of my country's "Copyright Law" stipulates that "copyright referred to in this law is copyright". Therefore, in my country, copyright and copyright are synonymous.

(II) Copyright and Author Rights

The author's right is the right of the author to his work according to law, which is the title of copyright in the early European civil law countries, emphasizing that the work is the reflection of the author's personality and the comprehensive protection of the author's rights. However, in modern society, the subject of copyright is no longer limited to the author, but also includes other copyright holders, such as those who obtain copyright due to transfer or inheritance. It can be seen that copyright is a category greater than the author's right.

(III) Copyright and Ownership of Works

Works are able to reflect the work of the carrier, such as books, newspapers, video tapes and so on. Ownership of works refers to the right of citizens, legal persons or other organizations to possess, use, gain and dispose of works. Copyright is the right of citizens, legal persons or other organizations to the works embodied in different material carriers. Although there is a close relationship between the two, they are rights of different nature that belong to the category of property rights and intellectual property rights.

(IV) Copyright and Publishing Rights

Copyright and publishing rights (equivalent to the right of reproduction and distribution in China's Copyright Law) are the relationship between the whole and the part. Copyright is the general term for the various rights that copyright owners enjoy in their works in accordance with the law; while the right of publication refers to the right to copy and distribute a work in the form of books, newspapers, periodicals, etc., and is the specific content of the property rights of the work.


Nature of copyright:

(I) property rights said

The doctrine, based on economic values, emphasizes that the essence of copyright is the right to reproduce a work for commercial purposes, emphasizes the property right attribute of copyright, and ignores or even denies the author's moral rights. The property rights doctrine belongs to an early doctrine suchThe spirit of this doctrine is reflected in the Queen Anna's Decree, passed by the British Parliament in 1709, which only provides for the property rights of works and does not involve the protection of the personal rights of authors. Modern copyright theory holds that copyright includes both property rights and personal rights, and the two should not be neglected. Therefore, the doctrine can not fully reveal the nature of modern copyright.

(II) said personal rights

The doctrineBased on the bourgeois anti-feudal ideology of "natural human rights, sacred and inviolable", it emphasizes that publishing and freely expressing ideas are a sacred inherent right. German philosopher Kant once said: work is not an ordinary commodity, to some extent, it is an extension of a person, that is, the author, and the work is a reflection of personality. This view is considered to be the origin of the author's moral rights. The theory of personal right emphasizes the author's spiritual right, that is, personal right, from the standpoint of human ontology. The establishment of this doctrine has brought a revolution to the copyright law, but its defects are also very obvious, that is, it does not give other copyright owners their due status.

(III) copyright one yuan said

The doctrine holds that copyright is neither a pure personal right nor a pure property right, but a special compound form. The doctrine emphasizes the monism of copyright, that is, it holds that copyright is an organic complex of the personal right of the author and the property right of the author, and the two cannot be separated. The infringement of personal rights of works also constitutes an infringement of property rights. This doctrine has been adopted by the copyright laws of a few countries such as Germany.

(IV) copyright binary said

The doctrine holds that copyright is one and two rights, consisting of independent personal rights and property rights of works. The personal right of works and the property right of works can be separated in theory. The personal right of works has the characteristics of non-transferability and permanence, while the property right of works has the characteristics of transferability, duration and inheritance. This view is now adopted by most countries, including my own.

Source:WeIP intellectual property ecosystem