Intellectual property rights are exclusive rights people have enjoyed the fruits of the intellectual creation of the law .

 [ 1 ] with the intangible nature of intellectual property , proprietary , and other regional and temporal characteristics , generally including copyright , trademarks, patents and other content. As a civil rights of intellectual property , can be a violation of passengers reflected.

I. Overview of infringement of intellectual property rights

( A ) infringement of intellectual property concepts and characteristics

The so-called infringement of intellectual property rights, is the perpetrator of plagiarism , falsification , counterfeiting , etc. against a natural person, legal person or other organization behavior (copyrights ) , patent rights, trademark rights , rights of discovery , invention , and other scientific and technological achievements rights. [ 2 ] Simply put, infringement of intellectual property that is subject to intellectual property infringement . In our country, the law on the protection of intellectual property rights has taken a variety of legal means to protect the civil law , administrative law, criminal law . Civil law sanctions, mainly through civil liability tortfeasor , in order to achieve the purpose of protection of the rights of man . According to "Civil Law" provisions of Article 118 , the victim intellectual property rights infringement , the right to request to stop the infringement , eliminating the effects damages. This is a civil law protection of intellectual property provides an important basis. Since the civil law theory, intellectual property rights and personal rights of both the dual nature , therefore , infringe intellectual property rights, both could result in infringement of property rights holders , but also could result in human rights violations of personal rights . In view of this , neither among the infringement of intellectual property rights infringement of property rights will be included in the behavior , not the behavior will be classified among the infringement of personal rights , in the form of infringement , the infringement should be treated separately as a class . According to the internal system of tort law , tort liability infringement of intellectual property rights should be addressed in this book as an important institution .

Unlike infringement of intellectual property rights against the person , but also from infringement of property rights , to sum up, we believe , has the following characteristics:

1 . Infringement subject and object restrictive . Intellectual property rights are territorial , an intellectual ability to obtain intellectual property protection , or whether an intellectual property generated , according to relevant national laws differ , obtain intellectual property protection of intellectual achievements in a country in another State may not be able to obtain intellectual property protection ; for the same level of intellectual property protection of intellectual achievements , protecting the contents vary from country to country varies ; intellectual property of any one intellectual achievements , according to the law is only valid in its geographic area ; an intellectual intellectual achievement in the failure of a particular country , that the intellectual achievements in the country by the "exclusive domain" into the " public domain " does not mean that the intellectual property rights in other countries have also failed. [ 3 ] Therefore, based on regional characteristics of intellectual property rights in a country is recognized as acts of infringement in another country may not have been identified as infringing . On the other hand , intellectual property also has a timeliness, a statutory term of protection than the right to terminate the term of protection rights . Thus , infringement of intellectual property rights infringement subject and object are due to their geographical and temporal restricted . This is significantly different from the protection of property rights as tangible property rights , which is not regional and timeliness, subject to infringement and infringement of the general passenger no limit , but the infringement of intellectual property rights is subject to considerable restrictions on the subject and the object .

2 . With statutory sexual infringing content . Intellectual property is a statutory right . Intellectual property generated and made differently than the generation of tangible property and how to get , because of the intangible nature of intellectual content , the decision itself does not directly generate intellectual property , but must be confirmed or granted pursuant to produce specialized intellectual property laws . [ 4 ] Moreover, the scope of intellectual property rights also has clear legal boundaries or legal basis to judge . Thus, although the characteristics of intellectual property is intangible , it is compared against tangible property , intellectual property infringement object is intangible , but the content of the rights of intellectual property is a right recognized by law , so the contents of infringement of intellectual property rights infringement infringement of the rights of the perpetrator type, scope , extent or limits , have the statutory nature .

3 . Tort range fuzziness . Because of the intangible nature of intellectual property , at the same time with a personal color, with the personal rights of property , and therefore , in practice tortfeasor actually cause much damage to the right people , it is difficult to accurately calculate . Specifically, in violation of copyright , because copyright protection is personal property interests and the interests of copyright holders , once compromised is difficult to calculate the loss ; in trademark infringement , either trademarks or service marks are because visibility, differences in other factors which influence the value of the size of the presence of other property rights , tort people how to pay compensation that will be difficult to calculate on ; in patent infringement , because the invention, utility model and design patents , etc. into reality the potential value of trade and patent productivity (including trade and transfer of trade licenses ) to the patent holder to bring economic benefits are difficult to accurately calculate the amount , there are also more difficult to determine the size and scope of compensation loss aspect . Visible, infringement of intellectual property rights is fuzzy on the scope of compensation , unlike infringement claims against the property and that is relatively easy to calculate the actual loss. Of course , intellectual property law also attempts to solve this problem , try to calculate a standard or method to determine the loss of technology through legislation , such as China´s " Copyright Law" Article 48 , paragraph 1 : " infringement of copyright or related to copyright rights, the infringer shall compensate for the actual loss of rights holders ; actual losses are difficult to calculate , can be compensated in accordance with the infringer´s illegal gains shall also include compensation for human rights violations to stop the reasonable expenses paid . "; 2 provides that : "The right of people ´s actual losses or the infringer ´s illegal gains can not be determined by the people´s court in accordance with the infringement of the plot , the verdict compensation 500,000 yuan ."

4 . Constitute infringement with particularity. Unlike other infringement of intellectual property rights infringement and a feature generally is not uniform on the constituent elements apply the "four elements " of traditional tort law. In some tort , in determining whether tort liability , causation requirement may not need , just to determine causality area of responsibility requirements ; in some violations , the perpetrators ( tortfeasor ) subjective fault may not be necessary elements may have to apply the principle of no fault liability , and so on. These are acts of infringement of intellectual property rights on the constituent elements is different from the general tort of infringement of personal rights , property rights , creditor behavior special. About this , we have devoted the content in the next few sections .

Species ( two ) infringement of intellectual property rights

According to different criteria , infringement of intellectual property rights can make a different division . The scope of this section in accordance with standards of intellectual property, intellectual property infringement made by the division of the basic types , generally including copyright infringement , trademark infringement , patent infringement and other forms. Because of this chapter Section II, III and IV as well as devoted , in this brief analysis is hereby as follows:

1 . Copyright infringement . States Copyright Law in order to effectively protect the copyright of the copyright infringement act provides for the legal liability system . Copyright infringement , infringement person without permission of the copyright , unauthorized use of its copyright act. Simply put, copyright infringement is targeted to copyright infringement can be divided into two kinds of property rights violations and violations of moral rights infringement writings .

2 . Trademark infringement . Infringement of registered trade mark rights and interests of all acts are acts of trademark infringement . Trademark infringement , trademark infringement exclusive right person without permission , taking unauthorized use, counterfeit , counterfeiting and other acts of infringement of its trademark exclusive rights act. Simply put, trademark infringement is a registered trademark exclusive rights violations targeting .

3 . Patent infringement . Infringement of the patent refers to the validity of the patent , the patent infringement person without permission of the patentee for commercial purposes but no negates the subject of illegal behavior . Patent infringement is a serious violation of the legitimate rights and interests of the patent holder , with rapid and healthy development of China´s economy and accession to the World of the WTO to promote the new situation , patent protection and the fight against patent infringement voices are getting higher and higher .

4 . Other intellectual property infringement . Defined in accordance with WIPO and WTO scope of intellectual property , infringement of intellectual property rights should also include species other intellectual property rights infringement , including infringement of the exclusive right to the domain name , infringement of trade secrets , violations against the rights of discovery and other intellectual right . Chapter in Section II, III and IV only investigate copyright infringement , trademark infringement and patent infringement , the behavior of other intellectual property infringement , this book is not for the introduction.

Second, copyright infringement

Literary and artistic works to meet the needs of the human spirit , dissemination and exploitation of the work can give creators bring fame and material interests , in order to make these two authors and security interests are met , resulting in a copyright protection system . The so-called copyright, refers to the right based on the law of literary and artistic and scientific works produced . [ 5 ] the object of copyright protection is the work , according to China´s "Copyright Law" provisions of Article 3 , works mainly in literary works ; oral works ; music, theater, opera , dance and acrobatic works ; art, architectural works ; Photographs ; films and similar cinematography creative works ; graphical engineering designs and product designs, maps , sketches and other works and model works ; computer software and other works of laws and regulations . Meanwhile , copyright , including the right of publication , authorship , modification rights , protection of personal rights such as the right of integrity and the right of reproduction , distribution , rental , exhibition rights , performance rights , broadcasting rights and other property rights. The so-called copyright infringement , is targeted to the copyright infringement of intellectual property rights , that people without the permission of the copyright infringement , unauthorized use of its copyright act. [ 6 ]

( A ) constitutes copyright infringement

Elements of copyright infringement , including:

1 . The author´s personal rights and property rights infringement violations . The author´s personal rights and property rights infringement act must violate "Copyright Law" legal provisions on moral rights and economic rights protection . Any infringement of the right of publication , authorship , copyright holders the right to amend , to protect personal rights such as the right of integrity acts constitute infringement of moral rights ; whatever without the copyright holder ´s permission to use their work behavior , and the use of works without the copyright holder or agreed to pay compensation in accordance with the provisions of the acts are against the behavior of economic rights . [ 7 ]

2 . The fact of damage against the moral rights and property rights . The fact that moral rights infringement damages refers to the fact that moral rights compromised . This damage is the fact that the performance of the following three levels: First, the fact that the right of publication moral rights of authorship , the right to modify , such as the right to protect the rights of the complete works of damage . Such damage to the facts , the performance of the right object damage. Second, damage the interests of the spirit , the author moral rights infringement , so the author´s spiritual interests are jeopardized , so that the author can not completely dominate the interests of their own identity work . Third, damage the interests of the property because of damage against the moral rights , may cause the author property interests; prejudice against the fact that the economic rights of copyright holders is the fact that economic rights enjoyed compromised . This damage is the fact that the performance of two levels : First, the fact that the economic rights of the right to use , the right to remuneration compromised . Second, damage of property interests. [ 8 ]

3 . Causal relationship between the infringement and the damage the truth. Although a causal relationship is necessary in most tort Elements , but in violation of intellectual property rights behavior , the causal relationship is not in any type of tort requirements have this requirement . Specifically, the moral rights infringement , because the damage levels are different, in general, the fact that damage to the spiritual interests have required a causal relationship , but the fact that damage to property interests , the causal relationship is not established or liability the constituent elements , but responsibility to determine the size of the elements ; in violation of economic rights , the causal relationship is an essential requirement , there is a causal relationship between that infringe on economic rights and economic rights violations to the fact that damage .

4 . Tortfeasor in the subjective fault. Whether it is against the economic rights , moral rights or infringement shall apply the principles of fault liability . Fault may be established copyright infringement liability , no-fault liability for copyright infringement is not established . In other words, the fault is necessary to determine the constituent elements of copyright infringement . Copyright infringement in the " fault" , either by the deliberate composition, may be constituted by negligence . In terms of negligence judge should first determine the infringer should pay attention obligations. For a good administrator burden obligations (such as editing, publishing, distribution personnel ) , based on objective criteria for judging light negligence ; handle their own affairs with respect to the burden of the duty of care for the same person ( general subjects ) , fault- light subjective criteria ; For gross negligence , shall assume the tort liability . [ 9 ]

Manifestations ( two ) copyright infringement

Manifestations of copyright infringement that copyright infringement form , according to the provisions of Article 46 of the "Copyright Law" , shall bear civil liability for violations of 11 cases ; Section 47 provides 8 kinds of violations. We will summarize it as follows:

1 . Unauthorized publication behavior. Ie, without permission of the copyright , publish their works . This behavior is mainly a violation of the right of publication of the work. On the right to decide whether to publish their own works as well as when, where, and in what manner public. Any person who, without the consent of the author or the author published his work published in such manner agreed to conduct its work , are violations of the right post . Acts of infringement of the right of publication involve economic rights may also constitute a violation of economic rights .

2 . Encroachment work behavior. Ie, without permission collaborators will work with others as their own individual creative works creative works published. Under the copyright laws of copyright works on cooperative ownership provisions , co- authors of the individual works not entitled to exercise the copyright of the cooperative work alone . The joint work as their own individual creative works published , not only have violated the rights of other collaborators , but also a violation of the right of authorship , embezzled the fruits of labor of others , but also deceived the use of the work units and individuals , to deceive the public . To prevent this from happening, in the contract usually requires copyright holders to make a commitment to ensure that the works do not provide copyright infringement . In the event of infringement liable by the copyright owner. [ 10 ]

3 . Forced signature behavior. That did not participate in the creation, in order to seek personal fame signed on another person´s work . Did not participate in the creation of their own , but to all kinds of unfair means the creation of a signature on the published work of others , which is a typical copyright infringement. Authorship rights of the author´s identity , is a form of moral rights , the creation of such a right is based on the fact that generation, he did not participate in the creation, but in order to seek personal fame , utilization and the real author of the works of a relationship , take the lure , coercion, forced and other means , the signature on the works of others , is the intellectual labor of others forced occupation , is a violation of authorship . Not only that , but also a violation of the author´s other copyright interest .

4 . Distort tampering . That distortion, mutilation behavior of others work. To protect the right of integrity is the personal rights of copyright holders , the author has the right to modify the work , have the right to authorize others to work on their own to make the necessary modifications. If without the author´s consent or permission, to modify the work of others , that a violation of the author´s right of integrity . In this regard , national copyright laws provide that any person who, without the author´s consent shall not be abridged , modify, supplement its original , or fragmented , changing the nomenclature of the works to be published. Obviously , distortion, mutilation works of others , are also typical of copyright infringement.

5. Plagiarism work behavior. That plagiarizing the works of behavior , the so-called plagiarism, simply put, is plagiarism, a work of the upcoming others or all pretending to be published in the behavior of their own creative work . Plagiarism is a common act of copyright infringement , breach of both and morality , but also allowed by law . Plagiarism roughly on the behavior of two , one is a direct plagiarism , ie the works of others intact posing their work directly used or copied to their works become part of their work ; Another indirect plagiarism that plagiarism structure or view willed style for the text in the form of individual expression or words to be converted , modified , as their original work to be published or used.

6. Unauthorized use behavior. Ie, without the copyright owner ´s permission or neighboring rights , no legal basis for the act of using the work of others . "Copyright Law" stipulates that the unauthorized use of the performance behavior of three , one is allowed to exhibitions, film production and cinematography use similar works ; Second, without authorization of adaptation, translation , annotation , such as use of the work ; Three is the unauthorized use of the publisher publication of books , periodicals layout design.

7 . Unauthorized rental behavior. Ie, without permission of the copyright , and no legal basis for the work of others and rental behavior . "Copyright Law " stipulates that without films and similar cinematography creative works , computer software, audio and video products for the rights of the copyright owner or person related to copyright permission to rent out their work or conduct audio and video products are violations shall assume the tort liability .

8. Refuse to pay compensation behavior. That the use of another person´s work , without pay shall be paid remuneration of behavior . This is mainly those in accordance with the provisions of copyright law, some use of a published work , may be used without permission of the copyright , but shall pay compensation in accordance with the situation . This is called " statutory license ." Legal permission to use the work , if people do not pay compensation as required, the part of copyright infringement . [ 11 ]

9. Performing acts of infringement . That performance without the permission from the live broadcast or publicly transmit their live performances , or record their performances behavior. The interests of copyright holders the right to artistic performances and performers were involved in performing the work, in accordance with the "Copyright Law" , the performers enjoy the rights of performers , performing work that is entitled to their own control , use and dispose of , without the copyright owners performers permission, broadcast , publicly perform transmission or recording acts are acts of copyright infringement .

10. Other violations. China´s " Copyright Law" provisions of Article 46 is the last of the " other acts of copyright infringement and copyright interests in the relevant departments " ; Article 47 also provides that the eight kinds of acts of copyright infringement , namely: ( 1 ) without the copyright permission , copy, distribute, perform, show , broadcast, broadcasting, compiling , disseminating their works to the public through information network ; ( 2 ) the exclusive right of publication of another book ( except as otherwise provided by law ) ; ( 3 ) performance without the permission to copy, distribute sound recordings and video recordings of his performances , or spread it ( except as otherwise required by law ) show to the public through information network ; ( 4 ) the production of audio and video recording without permission , copying , distribution , communication to the public through information network which produced audio and video products ( except as otherwise provided by law ) ; ( 5 ) without permission , play or copy ( except as otherwise required by law ) radio and television ; ( 6 ) without the copyright ( except as otherwise provided by the law of ) people or the rights related to the copyright permission , intentionally avoiding or destroying the rights of people to their work , technical measures to protect copyrighted audio and video products , such as the right to adopt or related to copyright ; ( 7 ) does not the rights of the copyright owner or a person related to copyright permission , intentionally deleting or altering work ( except as otherwise provided by law ) audio and video products , such as electronic rights management information ; ( 8 ) producing or selling signature of another work.

(C ) civil liability for copyright infringement

Acts of copyright infringement shall bear civil liability. According to the "Civil Law ", " Copyright Law" and relevant laws and regulations , acts of copyright infringement shall bear civil liability in accordance with the following conditions :

1 . Stop the infringement . That is ordered to immediately stop the infringement being implemented copyright infringement acts . Regardless of whether the tortfeasor subjective fault, must stop the infringement , to prevent the infringement extended to protect the legitimate rights of the victims . Meanwhile, in order to fully protect the legitimate interests of copyright holders , "Copyright Law" Article 49 , paragraph 1 also provides that the rights of the copyright owner or a person related to copyright, there is evidence that another person is committing or is about to violate their right to act , if not measures will make it in time to stop the legitimate interests of irreparable harm , may apply to the people´s court to order the prosecution to stop the act before the insurance and property rights .

2 . Eliminating the effects of apology. This is mainly for acts of copyright infringement caused harm to the right holder the right to apply personal civil liability approach can be applied alone or in conjunction with other obligations applicable way . [ 12 ] For copyright infringement , the court may order the tortfeasor public apology , you can also order them in other ways to eliminate the influence . Specific principles applicable , the impact caused by tort much work , it should eliminate much influence within the range .

3 . Damages. That works tortfeasor economic losses to their property because of their behavior to compensate copyright holders caused . Established in copyright infringement damages , it is necessary to follow the principle of full compensation , but also follow the principle of fair and reasonable . In the first section we have pointed out , the existence of intellectual property infringement loss calculation more difficult , so the legislation must establish the standard calculation of damages from the technology. China´s " Copyright Law" Article 48 , paragraph 1 : " infringement of copyright or rights related to copyright , the infringer shall compensate for the actual loss of rights holders ; actual losses are difficult to calculate , can be given in accordance with the infringer´s illegal gains damages amount of compensation should also include human rights violations to stop the reasonable expenses paid " ; paragraph 2 :" The right man in the actual losses or the infringer ´s illegal gains can not be determined by the people´s court in accordance with the infringement of the plot , the verdict given $ 500,000 in compensation . " Meanwhile, the Supreme People´s Court "to hear civil disputes of copyright law applicable to certain issues of interpretation" Article 24 states: " The actual loss of the right , you can reduce the amount of sales of the infringing copy or copies of the issue in accordance with the rights of people caused by the infringement the issue of the rights of people with reproductions calculated by multiplying unit profit . issue to reduce the amount is difficult to determine , determined in accordance with market sales of infringing copies . " Article 25 , paragraph 1 : "The right man in the actual losses or the infringer ´s illegal gains can not be determined , the court ex officio or applicable provisions of the second paragraph of Article 48 of the Copyright Law to determine the amount of compensation in accordance with the request of the parties ." ; paragraph 2 : " People´s Court in determining the amount of compensation , should consider the type of work , a reasonable royalty , tort nature and consequences of the episode comprehensive OK" ; paragraph 3 : "The parties in accordance with the provisions of the first paragraph on compensation the amount of agreement , shall be permitted . "