I. Nature of digital conversion of works The prerequisite for the dissemination of works on the Internet is that the works exist in the form of binary digital codes, that is, the works are first converted digitally. The so-called digitization. It refers to the input of text, numerical values, graphics, images, sounds and Other information of a work into a computer system and into a binary digital code consisting of 0s and 1s. On this basis, the work can be further processed, stored and transmitted, and these digital information can be reduced to text, images, sounds, etc. when needed. After the work is converted into digital information, it can be spread on the computer Internet. What kind of behavior is the digital conversion of works? There are different opinions for this. One view is that it is a deductive behavior that is similar to translation, and the other is that digital transformation is a copy.
In essence, the digitized behavior of works should be characterized as copying, and it is advocated that “deduction†confuses human language and machine language. The IX of Article 31 of the Memorandum on the Protocol to the Berne Convention put forward by WIPO in 1991 states that "in Yosiri, the concept of translation has been and is always directed at the actual language, that is, the human language," and digitization of the works is to convert human language into binary. Machine language does not constitute translation. The digitized behavior does not include the creative intellectual work of the actor, and the actor does not enjoy copyright in the converted work. Therefore, the viewpoint of deductive behavior cannot be established.
The process of digital conversion of traditional works involves two steps. One is to convert the original form of a traditional work into a binary number code, and the other is to fix the converted binary number code on a carrier. This behavior is essentially similar to the process of recording and video recording. They all belong to the copying process. The new work digitizes the original work, but it is the digital transformation of the original form of the work. This conversion is done by the machine. It is the conversion of the traditional work into a computer-recognizable language. This language is not used by humans. In the natural language, there is no essential difference between the process of digitizing the work and the process of dealing with the work with photography, recording, photocopying, and other technical means in the past, and there is no basis for the creation of new works. The copyright of the digitalized works still belongs to the original copyright holder. Digitization of works is not an act that anyone can do freely. It is the exclusive rights of copyright owners. Digitization of works is essentially a way to increase the use of works, has no creative component, and often uses a technique when used. The device is set to revert to the original information form of the work. In the process, the content and form of the work have not been changed. Therefore, the digitalization of the work and its reversal should be regarded as a new copy.
WIPO's Basic Proposal for the Substantive Provisions of the Treaty on the Protection of Literary and Artistic Works Certain Issues Raised by WIPO in August 1996, and the White Paper on Intellectual Property and National Information Infrastructure Proposed by the U.S. Government in September 1995 (hereinafter referred to as “White Paperâ€) ) Also think that the digitization process belongs to replication. The view of replication can also be found in the protocol of the Berne Convention. The Protocol stipulates that the scope of reproduction rights in the Berne Convention should be extended to "directly or indirectly reproduce the work directly and indirectly in any form or form."
The core right in copyright is the right of reproduction. The definition of the right of reproduction in the implementing regulations of China's copyright law is: the act of making one or more copies of a work by means of printing, photocopying, copying, rubbing, recording, video recording, ripping, remake, etc. Obviously, the scope of this definition is too narrow. The Computer Software Protection Act defines replication as the act of reprinting software on a tangible object. This expands the replication to computer programs but does not list digital conversions as copies. The Berne Convention also includes the use of works of art and architectural works in the scope of protection of reproduction rights. It stipulates that reproduction of the original works in any way constitutes reproduction. Our country should also refer to the experience of foreign legislation and international treaties, expand the scope of copying to digital works and practical works of art, and stipulate "electronic copying" in the mode of reproduction.
Second, the nature of the transmission of works on the Internet It is generally believed that the use of digital works to the public on the Internet is a use of works. It should be affirmed legally. The transfer of works to the public on the Internet belongs to copyright owners. An exclusive right. In December 1996, WIPO's two new treaties, the WIPO Copyright Treaty and the WIPO Performance and Record Treaty, gave authors, performers, and record holders the right to control interactive network transmissions, including the Internet.
As to the nature of this behavior, it is currently controversial and there are various opinions, such as claims that it is a distribution act, a broadcast act, or a publication act. WIPO considers it to be a publishing act or a combination of open communication and distribution. It is also argued that it is not a issuance behavior because the nature of the issuance is a treatment of copying, and it is a transfer of ownership. Online transmission does not involve the provision of copying. It does not belong to one of the distribution methods and should be similar to broadcasting. There is no essential difference between public communication and cable television.
We believe that the transmission of works on the Internet should be an act of distribution. Issuance refers to the act of providing a copy of a certain number of works to the public through selling, renting, etc. in order to meet the legitimate needs of the public. Issuance and replication are closely related. The results and economic impacts of the transmission to the public through the Internet are the same as those in the traditional sense. All the senders take positive measures and the recipients eventually obtain copies. On the Internet, works or their reproductions are transmitted to the public through the Internet, or displayed on an electronic bulletin board, which constitutes distribution.
Whether or not online transmission can be regarded as a distribution in the sense of copyright will depend on the formation of a copy in the transmission. This involves the issue of temporary duplication. The so-called "temporary copy" means that the work enters the random access memory of the computer during transmission and is not permanently copied. It will not only disappear due to power off or power failure, but will also be replaced at any time by information entered later during the operation of the computer. The white paper states that "according to U.S. law, access to computer memory is a copy of the material," and that all network transmissions are one or more copies of the work. In actual cases, the United States courts believe that once stored in the RAM of the user's computer. It is enough to perceive, reproduce or spread permanently and stably. Since this kind of storage leads to a fixed and copying is generated, then of course it infringes the exclusive right of reproduction of the copyright owner. The EU and its member states not only recognize this, but also actively promote temporary replication to be recognized worldwide.
From the perspective of international protection of copyright, WIPO pointed out as early as 1987 that when text and graphics were displayed on a computer screen and that they had enough time to read relevant documents and study related works, they were fixed. What actually appears on the screen is a copy of the work, usually in the form of a page. If this is true - it looks like it is true, the screen display is a copy, and the displayed work is a copy. The WIPO Committee of Experts proposed amending Article 9 of the Berne Convention concerning the right of reproduction, including the temporary reproduction included in the right of reproduction, arguing that "the only way to effectively coordinate the interpretation of the right of reproduction is to admit that temporary reproduction is within the scope of reproduction rights." However, due to opposition from a large number of developing countries, this proposal was not passed and could not be included in WIPO's copyright treaty.
The White Paper of the United States in 1995 believed that the dissemination of works to the public through computer internet has constituted the issuance of works. The distribution of works to the public on the Internet is one of the ways of distributing works. The United States recognizes the temporary copying and believes that all network transmissions are one or more copies of works, and with the development of technology, network transmission may become the main or only way of using works in the future. If you do not recognize temporary copying, copyright The interests of people will not be protected. The main reasons for the "white paper" issued by the White Paper are as follows:
l. The distinctions between the various exclusive rights contained in the copyrights that are most mutually exclusive should be conceptually differentiated from the distribution. Copying is the act of making a copy of a work. Issuance is the act of providing copies of works to the public. These two exclusive rights can be transferred to different parties. Different parties may have different proprietary rights. The copyright owner's exclusive rights involved in a tort in real life may be an industry that may be more than one;
2. A computer online user may have made a relatively stable copy of the work through a tangible carrier when unloading a work from the network, or may not. Even if a relatively stable copy is not made from a tangible carrier, when a networked computer user views and listens to the work, the work will inevitably enter the random memory of the user's computer from the network, and then be displayed on a fluorescent screen or played through a speaker. The entry of a work into the random memory of a user's computer from the Internet has already constituted a copy of the work in the United States, and the transmission of works on the Internet constitutes a distribution act;
3. The distribution mentioned here must be public-oriented. A work that is transmitted as private information to a specific partner through the Internet does not constitute distribution. The white paper also proposes to amend Article 106 of the U.S. copyright law. It is stipulated that the copyright owner has the right to sell or transfer ownership, or through leasing, writing or playing. A copy or transcript of the copyrighted work is distributed to the public. The US judicial precedent also supports this view. In the Marobie case, the court found that the owner of the copyrighted person's right to distribute the computer program uploaded to the web page without permission was infringed by the copyright owner.
The EU and its member states also support the United States' view of temporary copying, which infers that the transmission of works on the Internet is a publishing act. However, at present, many developing countries oppose this idea. Therefore, it will take time to accept this idea in the form of an international convention.
According to the “One-time Exhaustion Principle of Distribution Right†of the Copyright Law, computer network users have the right to send works that have been legally obtained on the Internet to the Internet. According to the traditional copyright law, after a copy of a product is issued, the sender no longer holds the copy. By spreading the work online, the original work still exists in the computer storage device that spreads the work. A new copy of the work is produced in the storage device of the computer that receives the work. This is inconsistent with the one-time exhaustion principle of distribution rights. According to the US white paper, network transmission is both an issue and a copy. This principle does not apply to the right of reproduction. Moreover, network transmission has a global nature. Once the rights are exhausted, it will lead to the exhaustion of various rights of copyright owners in the international market. This is unfair to copyright owners.
For China's copyright law, whether or not the extension of the issuance should be extended to the network transmission, and the once-exhaustion principle of the right to issue should be redefined, and further research is needed.
Third, the responsibility of online service providers Online service providers ("service providers") are the backbone of Internet information transmission, they play an important role in the transmission of the Internet. But what kind of responsibilities should they bear in the infringement? There are many disputes at present.
There are three typical cases of service providers in the United States. First, in 1993 Playboy Enterprise Inc.V.Frena, the defendant was the operator of the electronic deployment board, whose users uploaded and downloaded copyrighted images of the plaintiff's magazine on the electronic cloth board. The defendant claimed to know nothing about the user uploading infringing materials and should not be held responsible. The court held that although the infringing copy was not the defendant himself, the electronic bulletin board displayed the infringing copy, thus infringing the plaintiff’s right of publication and public display. The court should assume strict liability for copyright infringement, and the defendant should not be exempted from liability.
The second case was Sea Enterprise Ltd.V.Maphia in 1994. The device sold by the defendant can be used to copy the plaintiff's copyrighted game software. Users are encouraged to upload and download the software on the electronic bulletin boards they operate. The court held that the defendant knew of the use of copyright infringement. Still providing equipment and conditions. And given encouragement and guidance, due to the defendant's role in illegal copying, the court ruled that the defendant assumed joint tort liability.
The third case is Religious Technology Ctr.V.Netcom orrline Communic
In essence, the digitized behavior of works should be characterized as copying, and it is advocated that “deduction†confuses human language and machine language. The IX of Article 31 of the Memorandum on the Protocol to the Berne Convention put forward by WIPO in 1991 states that "in Yosiri, the concept of translation has been and is always directed at the actual language, that is, the human language," and digitization of the works is to convert human language into binary. Machine language does not constitute translation. The digitized behavior does not include the creative intellectual work of the actor, and the actor does not enjoy copyright in the converted work. Therefore, the viewpoint of deductive behavior cannot be established.
The process of digital conversion of traditional works involves two steps. One is to convert the original form of a traditional work into a binary number code, and the other is to fix the converted binary number code on a carrier. This behavior is essentially similar to the process of recording and video recording. They all belong to the copying process. The new work digitizes the original work, but it is the digital transformation of the original form of the work. This conversion is done by the machine. It is the conversion of the traditional work into a computer-recognizable language. This language is not used by humans. In the natural language, there is no essential difference between the process of digitizing the work and the process of dealing with the work with photography, recording, photocopying, and other technical means in the past, and there is no basis for the creation of new works. The copyright of the digitalized works still belongs to the original copyright holder. Digitization of works is not an act that anyone can do freely. It is the exclusive rights of copyright owners. Digitization of works is essentially a way to increase the use of works, has no creative component, and often uses a technique when used. The device is set to revert to the original information form of the work. In the process, the content and form of the work have not been changed. Therefore, the digitalization of the work and its reversal should be regarded as a new copy.
WIPO's Basic Proposal for the Substantive Provisions of the Treaty on the Protection of Literary and Artistic Works Certain Issues Raised by WIPO in August 1996, and the White Paper on Intellectual Property and National Information Infrastructure Proposed by the U.S. Government in September 1995 (hereinafter referred to as “White Paperâ€) ) Also think that the digitization process belongs to replication. The view of replication can also be found in the protocol of the Berne Convention. The Protocol stipulates that the scope of reproduction rights in the Berne Convention should be extended to "directly or indirectly reproduce the work directly and indirectly in any form or form."
The core right in copyright is the right of reproduction. The definition of the right of reproduction in the implementing regulations of China's copyright law is: the act of making one or more copies of a work by means of printing, photocopying, copying, rubbing, recording, video recording, ripping, remake, etc. Obviously, the scope of this definition is too narrow. The Computer Software Protection Act defines replication as the act of reprinting software on a tangible object. This expands the replication to computer programs but does not list digital conversions as copies. The Berne Convention also includes the use of works of art and architectural works in the scope of protection of reproduction rights. It stipulates that reproduction of the original works in any way constitutes reproduction. Our country should also refer to the experience of foreign legislation and international treaties, expand the scope of copying to digital works and practical works of art, and stipulate "electronic copying" in the mode of reproduction.
Second, the nature of the transmission of works on the Internet It is generally believed that the use of digital works to the public on the Internet is a use of works. It should be affirmed legally. The transfer of works to the public on the Internet belongs to copyright owners. An exclusive right. In December 1996, WIPO's two new treaties, the WIPO Copyright Treaty and the WIPO Performance and Record Treaty, gave authors, performers, and record holders the right to control interactive network transmissions, including the Internet.
As to the nature of this behavior, it is currently controversial and there are various opinions, such as claims that it is a distribution act, a broadcast act, or a publication act. WIPO considers it to be a publishing act or a combination of open communication and distribution. It is also argued that it is not a issuance behavior because the nature of the issuance is a treatment of copying, and it is a transfer of ownership. Online transmission does not involve the provision of copying. It does not belong to one of the distribution methods and should be similar to broadcasting. There is no essential difference between public communication and cable television.
We believe that the transmission of works on the Internet should be an act of distribution. Issuance refers to the act of providing a copy of a certain number of works to the public through selling, renting, etc. in order to meet the legitimate needs of the public. Issuance and replication are closely related. The results and economic impacts of the transmission to the public through the Internet are the same as those in the traditional sense. All the senders take positive measures and the recipients eventually obtain copies. On the Internet, works or their reproductions are transmitted to the public through the Internet, or displayed on an electronic bulletin board, which constitutes distribution.
Whether or not online transmission can be regarded as a distribution in the sense of copyright will depend on the formation of a copy in the transmission. This involves the issue of temporary duplication. The so-called "temporary copy" means that the work enters the random access memory of the computer during transmission and is not permanently copied. It will not only disappear due to power off or power failure, but will also be replaced at any time by information entered later during the operation of the computer. The white paper states that "according to U.S. law, access to computer memory is a copy of the material," and that all network transmissions are one or more copies of the work. In actual cases, the United States courts believe that once stored in the RAM of the user's computer. It is enough to perceive, reproduce or spread permanently and stably. Since this kind of storage leads to a fixed and copying is generated, then of course it infringes the exclusive right of reproduction of the copyright owner. The EU and its member states not only recognize this, but also actively promote temporary replication to be recognized worldwide.
From the perspective of international protection of copyright, WIPO pointed out as early as 1987 that when text and graphics were displayed on a computer screen and that they had enough time to read relevant documents and study related works, they were fixed. What actually appears on the screen is a copy of the work, usually in the form of a page. If this is true - it looks like it is true, the screen display is a copy, and the displayed work is a copy. The WIPO Committee of Experts proposed amending Article 9 of the Berne Convention concerning the right of reproduction, including the temporary reproduction included in the right of reproduction, arguing that "the only way to effectively coordinate the interpretation of the right of reproduction is to admit that temporary reproduction is within the scope of reproduction rights." However, due to opposition from a large number of developing countries, this proposal was not passed and could not be included in WIPO's copyright treaty.
The White Paper of the United States in 1995 believed that the dissemination of works to the public through computer internet has constituted the issuance of works. The distribution of works to the public on the Internet is one of the ways of distributing works. The United States recognizes the temporary copying and believes that all network transmissions are one or more copies of works, and with the development of technology, network transmission may become the main or only way of using works in the future. If you do not recognize temporary copying, copyright The interests of people will not be protected. The main reasons for the "white paper" issued by the White Paper are as follows:
l. The distinctions between the various exclusive rights contained in the copyrights that are most mutually exclusive should be conceptually differentiated from the distribution. Copying is the act of making a copy of a work. Issuance is the act of providing copies of works to the public. These two exclusive rights can be transferred to different parties. Different parties may have different proprietary rights. The copyright owner's exclusive rights involved in a tort in real life may be an industry that may be more than one;
2. A computer online user may have made a relatively stable copy of the work through a tangible carrier when unloading a work from the network, or may not. Even if a relatively stable copy is not made from a tangible carrier, when a networked computer user views and listens to the work, the work will inevitably enter the random memory of the user's computer from the network, and then be displayed on a fluorescent screen or played through a speaker. The entry of a work into the random memory of a user's computer from the Internet has already constituted a copy of the work in the United States, and the transmission of works on the Internet constitutes a distribution act;
3. The distribution mentioned here must be public-oriented. A work that is transmitted as private information to a specific partner through the Internet does not constitute distribution. The white paper also proposes to amend Article 106 of the U.S. copyright law. It is stipulated that the copyright owner has the right to sell or transfer ownership, or through leasing, writing or playing. A copy or transcript of the copyrighted work is distributed to the public. The US judicial precedent also supports this view. In the Marobie case, the court found that the owner of the copyrighted person's right to distribute the computer program uploaded to the web page without permission was infringed by the copyright owner.
The EU and its member states also support the United States' view of temporary copying, which infers that the transmission of works on the Internet is a publishing act. However, at present, many developing countries oppose this idea. Therefore, it will take time to accept this idea in the form of an international convention.
According to the “One-time Exhaustion Principle of Distribution Right†of the Copyright Law, computer network users have the right to send works that have been legally obtained on the Internet to the Internet. According to the traditional copyright law, after a copy of a product is issued, the sender no longer holds the copy. By spreading the work online, the original work still exists in the computer storage device that spreads the work. A new copy of the work is produced in the storage device of the computer that receives the work. This is inconsistent with the one-time exhaustion principle of distribution rights. According to the US white paper, network transmission is both an issue and a copy. This principle does not apply to the right of reproduction. Moreover, network transmission has a global nature. Once the rights are exhausted, it will lead to the exhaustion of various rights of copyright owners in the international market. This is unfair to copyright owners.
For China's copyright law, whether or not the extension of the issuance should be extended to the network transmission, and the once-exhaustion principle of the right to issue should be redefined, and further research is needed.
Third, the responsibility of online service providers Online service providers ("service providers") are the backbone of Internet information transmission, they play an important role in the transmission of the Internet. But what kind of responsibilities should they bear in the infringement? There are many disputes at present.
There are three typical cases of service providers in the United States. First, in 1993 Playboy Enterprise Inc.V.Frena, the defendant was the operator of the electronic deployment board, whose users uploaded and downloaded copyrighted images of the plaintiff's magazine on the electronic cloth board. The defendant claimed to know nothing about the user uploading infringing materials and should not be held responsible. The court held that although the infringing copy was not the defendant himself, the electronic bulletin board displayed the infringing copy, thus infringing the plaintiff’s right of publication and public display. The court should assume strict liability for copyright infringement, and the defendant should not be exempted from liability.
The second case was Sea Enterprise Ltd.V.Maphia in 1994. The device sold by the defendant can be used to copy the plaintiff's copyrighted game software. Users are encouraged to upload and download the software on the electronic bulletin boards they operate. The court held that the defendant knew of the use of copyright infringement. Still providing equipment and conditions. And given encouragement and guidance, due to the defendant's role in illegal copying, the court ruled that the defendant assumed joint tort liability.
The third case is Religious Technology Ctr.V.Netcom orrline Communic
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