The reason why the law restricts the exercise of copyright is mainly because works, as spiritual products, are different from other products, and their value can only be reflected if they are transformed into social benefits. Works have the characteristics of dissemination and knowledge, and their wide and timely dissemination is indispensable for social development and cultural progress. The improvement of citizens' cultural level and quality, public cultural entertainment and other spiritual consumption levels are all related to the dissemination of works in spiritual products. In this case, in order not to make some "exclusive rights" granted to authors by copyright law become obstacles for the public to acquire knowledge and the development of education, science and culture of the whole society, copyright laws in various countries have imposed some restrictions on authors' "exclusive rights" (mainly economic rights/property rights) in different historical periods. Our country's constitution stipulates that citizens should bear obligations while enjoying rights. Restricting copyright is to stipulate an obligation, that is, the author's obligation to society.
Specific contents of copyright restrictions:
Duration of copyright
The term of copyright refers to the term during which copyright is protected by law. Specifically, time limit is a restriction on the right of publication in the property right and personal right of works, while there is no time limit on the right of signature, modification and protection of the integrity of works in the personal right of works. During the period of copyright protection, the copyright owner enjoys a relatively complete copyright; After the expiration of the time limit, the copyright of the restricted part will be lost and will no longer be protected by law. Article 2 1 of China's Copyright Law clearly stipulates the term of protection of different types of works, as follows:
1. Duration of protection of citizens' works
The protection period of a citizen's work is 50 years after the author's death, ending at 65438+February 3 1 in the 50th year after the author's death, or at 65438+February 3 1 in the 50th year after the last author's death if it is a cooperative work.
2. Duration of protection of works of legal persons or other organizations
The protection period of works and copyrights (except the right of signature) of legal persons or other organizations is 50 years, and the protection period of publishing rights and property rights ends at 65438+February 3 1 day in the 50th year after the first publication of the works. If a work is not published within 50 years after its creation, the copyright law will no longer protect it.
3. The term of protection of a cinematographic work or a work created by a similar cinematographic method.
The term of protection of cinematographic works and works created by similar cinematographic methods is the same as that of legal persons or other organizations.
4. Protection period of works by unknown authors.
The protection period of a work with unknown author, publishing right and property is 50 years, ending at 65438+February 3 1 in the 50th year after the publication of the work. However, after the author's identity is clear, it applies to the provisions on the protection period of citizens' works.
Geographical restrictions of copyright
Copyright law is a domestic law, which can only be effective in China, that is, works created in China can only be protected by domestic law, not by other countries. This is the geographical limitation of copyright. However, the internationalization trend of intellectual property rights makes copyright protection cross national boundaries. Just as this chapter describes the relative regionality of copyright characteristics, the international nature of automatic acquisition and protection of copyright makes the protection of copyright less obvious than the regionality of trademark rights and patent rights. The reason is that most countries in the world have signed bilateral agreements or participated in international conventions on copyright, such as Berne Convention and World Copyright Treaty, and basically realized the international protection of copyright according to their "national treatment principle" and "reciprocity principle", that is, the works of nationals of member countries can be protected in other member countries as well as their own nationals, which makes the regionality of copyright less obvious. However, countries that have not acceded to international conventions are subject to geographical restrictions in copyright protection.
[Editor] Restrictions on Copyright Rights
The power restriction of copyright refers to the legal provisions that a copyrighted work can be used without the permission of the copyright owner and does not constitute infringement. The power restriction of copyright mainly includes fair use, statutory license and compulsory license.
1. Fair use
Fair use refers to the legal system of using copyrighted works within a certain range without the consent of the copyright owner and without paying remuneration in accordance with the provisions of the copyright law. Fair use is aimed at users, who must be able to apply it under certain conditions: the works used have been published; The purpose of use is non-profit. The use of other people's works shall not infringe upon the other rights of the copyright owner, and the name of the author, the name of the work and the source must be indicated when using other people's works; Reasonable use must have a legal basis. Article 22 of China's Copyright Law lists the scope of fair use:
(1) Use the published works of others for personal study, research or appreciation as soon as possible. This way of use is mainly to clarify the purpose of use, that is, the purpose of using other people's works is for personal study, research or appreciation, not commercial purposes. The so-called "individual" should not be interpreted beyond the scope of the family. ;
(2) appropriately quoting published works of others in a work for the purpose of introducing and commenting on a work or explaining a problem. Citation refers to appropriately extracting published works of others from one's own works. The "proper quotation" in this paragraph is crucial; First of all, the purpose of quoting is limited to introducing and commenting on a work or explaining a problem; Secondly, the quoted part cannot constitute the main part or substantive part of the quoted work.
(3) In order to report current news, it is inevitable to reprint or quote published works in newspapers, periodicals, radio and television programs. This paragraph refers to newspapers, periodicals, radio, TV programs and other media that inevitably copy or quote published works in order to report current news. The main emphasis here is: first, it is fair use to copy or quote the published works after the purpose of news reporting, and it constitutes infringement beyond this purpose and scope.
(4) Newspapers, periodicals, radio stations, television stations and other media publish or broadcast current affairs articles on political, economic and religious issues that have been published by other newspapers, periodicals, radio stations, television stations and other media, unless the author declares that they are not allowed to publish or broadcast.
(5) Newspapers, periodicals, radio stations and television stations publish or broadcast speeches delivered at public meetings, unless the author declares that they are not allowed to publish or broadcast.
(6) Translating or reproducing a few published works for classroom teaching or scientific research in schools, but not for publication and distribution. The application of this paragraph meets two conditions: first, the purpose of use is limited to school classroom teaching or scientific research; Secondly, generally speaking, the way of use can only be translated or copied, and the copy must be made early, and it cannot be published, which cannot affect the normal use of the work.
(seven) the use of published works by state organs within the reasonable scope of performing official duties.
(8) Libraries and archives; Memorial halls, museums, art galleries, etc. Reproduce the works collected by the museum for the purpose of displaying or saving the version. Collection works refer to the published and unpublished works collected by our library. The purpose of copying a collection of works is to show or save the version; The condition of copying can only be that there is only one portfolio.
(9) Performing published works for free. Free performance refers to a performance that does not charge the audience and the audience, and does not pay the performers.
(10) Copying, painting, photographing and video recording works of art set up or displayed in outdoor public places. The conditions for the use of this clause are: it must be an artistic work set up or displayed in an outdoor public place; The way of use is limited to indirect contact-copying, painting, photography and video recording.
(1 1) Translate Chinese works published by China citizens, legal persons or other organizations into minority languages for publication and distribution in China. In order to promote the scientific and cultural development of ethnic minorities, China citizens, legal persons or other organizations can translate published works of China in ethnic minority languages without the consent of the copyright owner and without paying remuneration. However, the condition is that this provision only applies to Chinese original works, and the translated works are only published in China.
(12) Change the published works into Braille. For the public welfare purpose of caring for and supporting the disabled, published works can be published in Braille, which not only does not require the consent of the copyright owner, but also has no restrictions on the location of the copyright owner of the original works, the form of Braille works and the publishing area.
The above-mentioned fair use of 12 also applies to restrictions on the rights of publishers, performers, producers of audio and video recordings, radio stations and television stations.
2. Legal permission
Legal license refers to the legal system that according to the provisions of the copyright law, copyrighted works can be used within a certain range without the consent of the copyright owner, but remuneration should be paid. This system can also be applied under certain conditions: the works used have been published publicly, and the use of other people's works shall not infringe upon the other rights of the copyright owner; If you use another person's work, you must indicate the name of the author, the name of the work and the source; Except those that are declared not to be used in advance.
China Copyright Law lists the scope of legal license:
(1) Textbooks compiled and published for the implementation of the nine-year compulsory education and the national education plan may be compiled by using published works fragments, short stories, musical works or separate artistic and photographic works without the permission of the copyright owner, unless the author declares in advance that they are not allowed to be used.
The provisions of this paragraph are very clear, and the purpose is to use the official textbooks prepared for the implementation of the nine-year compulsory education and the national education plan; The so-called textbooks must be formal textbooks, excluding teaching AIDS and teaching reference books. The use must be small, that is, fragments of works or works with short words or single works of art and photography.
(2) After the publication of a work, other newspapers and periodicals may reprint it or publish it as abstracts or materials, unless the copyright owner declares that it is not allowed to reprint or extract it.
Reprint refers to the publication of works that have been published in other newspapers and periodicals; An excerpt is a partial excerpt or abbreviation of the original content. This kind of reprinting is only for works published in newspapers and periodicals, and can only be reprinted and excerpted to other newspapers and periodicals. By the way, only the copyright owner has the right to declare that reprinting or extracting is not allowed.
(3) producers of sound recordings use music works legally recorded by others as sound recordings to make sound recordings.
This paragraph stipulates that the use of works is limited to musical works, provided that these works are legally recorded as sound recordings. The law does not allow the recording of other works such as drama and folk art.
(4) Radio stations and television stations broadcast published works or published sound recordings of others.
When a radio station or television station broadcasts a published work or a published sound recording product of others, its remuneration may be negotiated with the copyright owner, or with the copyright collective management organization authorized by the copyright owner, or it may be paid according to the remuneration standard formulated by the relevant department.
As can be seen from the above provisions, the conditions of legal license are strictly restricted by law, and its purpose is to protect the interests of copyright owners and encourage the wide spread of works. The law also stipulates the system of copyright owner's rights reservation, which allows copyright owners to declare that others are not allowed to use their works.
3. The difference between fair use and legal license
There are similarities and differences between the legal licensing system of copyright and the fair use system.
(1) is the same; All the works used are published works; You don't need the consent of the copyright owner to use the work; The name of the author, the name of the work and the source must be indicated; Other rights of copyright owners must be respected; The purpose is to balance society and work; The interests of the owner.
(2) The difference is that legal license should pay remuneration to the copyright owner, while fair use need not pay remuneration to the copyright owner; There are 12 kinds of reasonable use, and only 4 kinds are permitted by law. If permitted by law, the copyright owner declares that it cannot be used, but there is no such condition attached to fair use; Rational use must not be for profit, and legal licenses are mostly for profit.
4. Compulsory licensing
Compulsory license refers to the system that under certain conditions, when the copyright authority authorizes the use of other people's works according to the application of the parties, it does not need the consent of the copyright owner, but should pay remuneration. If a user of a work needs to use another person's published work for some legitimate reason, and consultation with the copyright owner fails, he may apply for authorization to use it, but he shall pay remuneration. The purpose of establishing this system is to prevent copyright owners from abusing their exclusive rights and refusing others to use their works for justified reasons.
The difference between compulsory license and statutory license is that statutory license does not need to seek the opinions of the copyright owner in advance, nor does it need to apply to the competent government department; However, the compulsory licensing procedure is complicated, and if the negotiation with the copyright owner fails, it will apply to the competent department for authorization and obtain the right to use the work through compulsory licensing. The similarity between compulsory license negotiation and statutory license lies in that both of them should pay remuneration to the copyright owner.
Although there is no compulsory license system in China's copyright law, due to China's accession to Berne Convention and universal copyright convention, the provisions on compulsory license in the above-mentioned international copyright conventions can also be applied. ?
References:
Editor Jiang Jisheng. Information acquisition and information property right. Wuhan Publishing House, issue 1, September 2005.