Blog in China is not a new thing

2005, with the portal sites such as Sina, Sohu and other successively joined the blog camp, all kinds of blogs springing up general development and become an important phenomenon of the Internet. The composition of the blog includes words, pictures, videos, music and other elements. Bloggers often enrich the content of blogs by publishing or reproducing articles, playing background music, and many other forms.

In the reprint article, the ordinary blogger generally only simple annotation "zz" or "reprint" the word, to the background music or the background picture's setting also often through the backstage direct uploads or the link. Very few people label the author and source of the reproduced works in detail. It seems that netizens have never looked into the matter properly. Until the appearance of Li Qiang v. Fen case

Famous coach Fen is sued blog infringement

June 2010, the plaintiff Li Qiang v. Defendant Fen case sentence. Beijing Haidian District People's court confirmed that the defendant Fen without permission on its blog to use the plaintiff Li Qiang Blog article acts constitute infringement, sentenced to the defendant fen stop infringement, apology and compensation for economic losses amounted to 1800 yuan. The media referred to the case as "the first domestic blog article copyright case."

The plaintiff Li Qiang on June 17, 2009 in its "Northwest Wind Space-Sohu Blog" On the published "Western Philosophy is science, Oriental thought is a religion" (hereinafter referred to as "West" text), the defendant Fen repeatedly visited the plaintiff Li Qiang's blog. August 2, 2009, the defendant Fen in its "Fen Blog-Sohu Blog" on "How to break the bottleneck of difficulty and stability, continue to lead the world to jump the altar (hereinafter referred to as the text), the article part of the content of the text of the whole paragraph, and not in any form to indicate the author and provenance of the citation. The plaintiff believed that the defendant Fen's behavior violated the copyright which he enjoyed according to the law of the West.

The defendant, Fen, argued that the plaintiff could not prove that it was the northwest wind of the Northwest's space-Sohu blog, and could not prove that it was the author of the Western text. In addition, "such as" the reference to the text of the text only accounted for 10% of the total number of words, two articles are published in the blog, belong to the rational use, does not constitute a tort.

After the court heard that the plaintiff Li Qiang through the input user name and password can login "Northwest Wind Space-Sohu Blog" and blog Home "Northwest Wind Space-Sohu blog" Next to show the plaintiff Li Qiang himself photos, in case the defendant fen not submitted the contrary evidence, the court confirmed the plaintiff Li Qiang "Space of Northwest Wind-Sohu Blog" Of all "Northwest wind", in accordance with the law to the "West" of the text enjoy copyright. The plaintiff Li Qiang and the defendant Fen in their blog posts, are subject to the copyright law of the People's Republic of China's protection and regulation. In accordance with the provisions of the copyright law of China, the use of works of others shall be subject to the permission of the copyright owner to pay remuneration and specify the name of the author, the title of the work, regardless of whether it is used in a paper publication or online blog. The defendant fen without the plaintiff Li Qiang permission, nor paid to it, and did not specify the name of the quoted part of the author's name and work, that is, in its Internet blog space published "such as" article, the defendant Fen violated the plaintiff Li Qiang to the "West" of the title and the right to disseminate information network.

Regardless of the paper, the network, the copyright before all equal

As the copyright of intellectual property, it has certain exclusivity and monopoly, which restricts the use and spread of works in the public. The purpose of rational use system design is to find the balance between the right person and the public: under the legal circumstances, it is not improper to use the works without the author's permission. Blog reprint, use is reasonable use?

The Copyright Act of 1990 and the amendment of 2001 make a list of the 12 cases that are reasonably used, including personal use, teaching use, free performance, official use, use of display works in public places, translation and use of Han's writings. This legislative model belongs to the enumeration type, and has exhausted 12 kinds of reasonable use way. This kind of legislative pattern avoids the unification of the legal cognizance standard, has the clear norm and the guidance effect, but because the legislation itself has the lag, and the enumeration type has the closeness, therefore faces the social change flexibility to be low.

It should be pointed out that the 1990 China's Internet is in its infancy, the 2001 Internet penetration is far from comparable today, the current year's legislation more or based on the real world of copyright protection. Copyright law was amended again in 2010, but there was no amendment to the legal situation of reasonable use. The development of the Internet has not reflected much in the legislative changes of copyright law, and more, this change is reflected by the lower level normative documents such as the Regulation on the Protection of Information network communication rights. The ambiguity of the copyright protection legislation of the network leads to the perplexity in the judicial practice. In the face of copyright law, is the virtual world equal to the real world?

Under the law tradition of strict legalism, the basis of our country's court case is: "Based on facts, with law as the criterion". Any act in the network environment is carried out by a specific perpetrator, so all existing legislation should be applied. As the court said: "Blog is a new form of network communication, registered users can freely determine the content of the publication, but this freedom is not unrestricted, registered users on the network to enjoy the legal rights and obligations of the legal obligation and the real life is no different. Copyright owners shall be respected by others for the copyright of their creations, whether published or disseminated in paper or in digital form. ”

The specific analysis of copyright infringement of Blog

After all, the Internet environment has its particularity. Compared with the real world, the work published in the network environment is faster and more widely spread, the mouse can realize the work is never open to the open process, and once the work is open on the network, anyone can contact the related works.

As the product of Internet, blog also has its particularity. Common blogs are divided into public blogs and private blogs. The former is generally open in the access settings, anyone can browse the reading, many for the celebrity blog, the latter according to the different access rights are divided into open, semi open type and closed. The motivation for blogging is also diverse, either for publicity hype or for lyrical purposes, or for commercial or non-profit purposes. But from ordinary people's motivation to write blog, generally are simple narrative life, blog is essentially an electronic diary form, can be published in the sense of their own thoughts and feel the feeling of sadness and joy. It is important to be clear that the emphasis here is on private blogs, which are clearly not a familiar diary in our memory for the apparently profitable public blogs.

One of the "reasonable uses" listed in the copyright law is the use of an individual, that is, "to learn, study or appreciate for an individual, to use another person's published work". A diary is a typical personal use. Write a diary on the paper interface, excerpt from the use of other people's works, will not cause copyright legal disputes, but when these content in the Internet environment becomes the content of the blog, the situation is complicated.

Case one: The blog is closed, only the blogger himself has browsing rights. Whether or not the blogger specifies the name of the author, the title of the work will not constitute copyright infringement. The tort should have three elements, such as illegal action, damage consequence and causality. Closed blog In any case use, as long as not open to the public, there will be no harm consequences.

Situation Two: The blog is half open, some people have browsing rights. At this point, whether can constitute a reasonable use, should be based on the scope of the blog open specific. The occurrence of copyright infringement is usually in the case of the publication of works, and the scope and extent of the works are directly influenced by the nature of the works. If the use of a blog for a published work is sufficient to damage the information network communication rights and related rights of the original author, then the reasonable use of the reasons will be difficult to obtain support.

Case three: The blog is open, and anyone has the right to browse. The concept of "publication" in the Sense of copyright law is the meaning of "public". In the Open Blog "published" blog is published behavior, as long as the Internet, anyone can access the content of such blogs. At this time, if the copyright law does not conform to the provisions of reasonable use, it should bear the corresponding copyright liability.

The amount of tort compensation should be discretion

Li Qiang v. Fen case, the defendant Fen was sentenced to compensation for the plaintiff Li Qiang economic losses and litigation reasonable expenses amounted to 1800 yuan. In such cases, people tend to be more sensitive to numbers, there may be an illusion: Fen lost 1800 yuan, but often ignore these 1800 yuan contains two parts: economic losses and litigation reasonable expenditure. In this case, the plaintiff in order to prove its reasonable expenses, submitted to the Court 540 yuan notarization fee invoices, 2500 yuan legal fees invoices, 494 yuan Jining to Beijing round-trip ticket and 5 Yuan purchase train ticket processing fee invoices. The court shall support the reasonable part of the law. It can be speculated that, of the total amount of $1800, only a very small portion of it is actually used to compensate for economic losses.

In respect of the amount of compensation, the 49th article of the Copyright Law stipulates that infringement of copyright or rights related to copyright shall be compensated according to the actual loss of the obligee; the actual loss is difficult to calculate and can be compensated according to the illegal income of the infringer. The amount of compensation should also include reasonable expenses paid by the obligee to stop the infringement. If the actual loss of the obligee or the illegal income of the infringer cannot be ascertained, the People's Court shall award compensation under 500,000 yuan according to the circumstances of the infringement. The article that quotes others on the blog can cause how much damage to the obligee, how many illegal gains can the infringer obtain? A blog post, a piece of text, hard to say. It is generally difficult for the parties to provide support for evidence.

Therefore, there are a number of factors that should be considered in the sentence:

Private blogs, the use of published work is generally well-intentioned, mostly to enrich the content of the blog. If the responsibility of the LAN heavy, I am afraid that many bloggers are difficult to accept, but also to their enthusiasm to create blogs hurt. I am afraid every word on the blog will be carefully worded, in order to avoid stepping on the copyright of mined areas, the blossoming of the blog era will quiet?

Furthermore, some provisions of copyright legislation in our country are produced under the pressure of the international society, which is very controversial in our national conditions. As for the judge, how to exercise discretion in the hands and seek balance in legislation and reality will become the biggest problem in judicial practice. Comprehensive consideration, the law on the blog, especially private blog should not be too strict, even if constituted infringement, in the case of the cessation of infringement, as far as possible to reduce or reduce the bloggers ' liability.