Legislative ambiguity leads to judicial obstruction of network copyright case

Absrtact: Until today, the taxi driver Li Qiang, Jining District, Wulanchabu City, Inner Mongolia Autonomous Region, has not yet come to the famous diving coach Fen's apology and compensation. July 26, Beijing Haidian District People's Court formally accept Li Qiang's enforcement application. But for now,

Until today, the Jining district of Wulanchabu City, Inner Mongolia Autonomous Region taxi driver Li Qiang has not yet come to the well-known diving coach Fen apology and compensation.

July 26, Beijing Haidian District People's Court formally accept Li Qiang's enforcement application. But at present, this is known as "China's first to form a case of blog article copyright dispute case", the formation of follow-up effect has far exceeded the case itself. Some legal people say the case is likely to end the "free lunch" era of blogging copyrights.

Case review: The famous diving instructor moved the cabbie's blog

One is the mentor of Guo Jingjing and Mingxia, one is the ordinary taxi driver in Wulanchabu City, because a blog article, these two eight poles cannot hit the person to stir in a lawsuit.

This year, 47-year-old Li Qiang-like literature, likes writing, June 17, 2009, he in his "Northwest Wind Space-Sohu Blog" On the published "Western philosophy is

Science, Oriental Thought is a religion (referred to as "West" text), the article was pushed by Sohu Network for the essence of the post. Fen repeatedly visited Li Qiang's blog.

August 2, 2009, Fen in its "Fen Blog-Sohu Blog" on "How to break through the bottleneck of difficulty and stability, continue to lead the world Jump Altar" ("such as" article). Li Qiang in the network contrast found that the article part of the content of the text quoted in the whole paragraph, and did not in any way indicate the author and provenance of the citation. Li Qiang believes that the behavior of fen violates the copyright which the article of "West" enjoys legally.

September 2009 mid-June, Li Qiang came to Beijing, a paper petition to fen to Beijing Haidian District People's Court intellectual property Court.

Court First Instance: blog copyright is also protected by law

In the trial, the defendant Fen argued that the plaintiff Li Qiang can not prove that it is involved in the "Northwest Wind Space-Sohu Blog" Of all the "Northwest Wind", also can not prove that it is the author of "West" 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 username and password can login "Northwest Wind Space-Sohu Blog", and the blog home page shows the plaintiff Li Qiang himself photos, in the defendant Fen did not submit evidence of the contrary, the Court confirmed that the plaintiff Li Qiang, "The Northwest Wind Space-Sohu Blog" Of all the "Northwest wind", according to the "West The article enjoys copyright.

The court found that the plaintiff Li Qiang and the defendant Fen in their respective blog posts, are subject to copyright law protection and regulation. In accordance with the provisions of the Act, the use of works of another person 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, whether 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.

June 12, 2010, the Court considered that the blog is a new form of network communication, registered users can freely publish articles, 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.

The court finally ruled that Fen ceased to use the Western philosophy is science, Oriental thought is the content of the religion, and respectively in the "Fen blog-Sohu Blog" "Sohu Circle-Sports stand-into the fen sky" and other related websites on the publication of the apology statement, while compensation for Li Qiang economic losses and rights protection costs 1800 yuan.

Legislative ambiguity leads to judicial obstruction of network copyright case

The case was concluded, but the deliberations surrounding the case were far from over.

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.

"How much damage can the right person be caused by the articles quoted on the blog, and how many illegal gains are available to the infringer?" "Haidian Court Judge assistant Wu Chrmen said, not only the damage is difficult to define, the general tort may also be found in the relatively short time infringement of the article to delete the alleged infringement, thus leading to the infringement of the evidence can not." This has also led to the conclusion that such cases have been settled by conciliation or conciliation. In this case, the plaintiff Li Qiang has always been determined to defend the rights, and the defendant's infringement of the conduct of specialized personnel to recruit notaries, the first time a complete notary, the key to its success.

The other focus of the case is the definition of "reasonable use" of the network works.

In the "reasonable use" listed in the copyright law, one is the use of the individual, namely "for the individual to learn, study or appreciate, use others have published works." Wu Chrmen said, ordinary people write a blog, is generally simple narrative life, is essentially an electronic diary form, is a typical personal use. In the paper interface, excerpt from the use of other people's works, will not cause copyright legal disputes, but when the content in the Internet environment, the situation is complicated.

Wu Chrmen told the science and technology daily that the copyright law of 1990 and the amendment of the law in 2001, the 12 cases of reasonable use listed in the list, including personal use, teaching use, free performance, official use, display of public works of use, Translation and use of Han Chinese writings. 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.

Some experts 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 this change is reflected by the lower level normative documents such as the Protection of Information Network dissemination rights regulations. The ambiguity of the copyright protection legislation of the network leads to the perplexity in the judicial practice.

"For judges, how to exercise discretion in the hands of discretion, in the legislation and reality to seek a balance point will become the biggest problem in judicial practice." "Wu Chrmen bluntly," China's first to form a case of the blog article copyright dispute case "claims of blog copyright or let" free Lunch "era end, but she is also worried that there may be an extreme: every word on the blog will be carefully worded, in order to avoid stepping on the copyright of the minefield, the blossoming of the blog era will quiet?

However, the legal profession believes that the blog in the modern society is becoming more and more popular, as the national first to form a case of blog article copyright disputes, the case of the public to establish a sense of copyright has a positive and far-reaching impact. "Perhaps write a blog to be more careful, the best reference to write like a paper to mark the author and source." "Some say.