First, the concept of layout design
China's Copyright Law does not clearly define the legal concept of layout-design. The concept of "layout design" has been brought into China's copyright legislation, which is a gradual development process. 1990, when the copyright law was passed, there were no provisions related to layout design. 199 1 Regulations on the Implementation of Copyright Law (repealed) put forward the related concepts of "layout design". Article 38 stipulates that publishers have exclusive right to use the layout and binding design of books, newspapers and magazines they publish. 200 1 The first amendment to the Copyright Law formally put forward the concept of format design, in which Article 35 stipulates that publishers have the right to license or prohibit others from using the format design of their published books and periodicals, and stipulates that the protection period of the right of format design is ten years. In 2002, that is, the current "Regulations on the Implementation of Copyright Law", the exclusive right of layout-design was once again defined as neighboring right. From the perspective of legislative evolution, the protection of layout design is mainly limited to books and periodicals. The second revision of 20 10 copyright did not change the legal provisions of layout-design, but changed the legal order to Article 36.
There are many understandings about the concept of layout design. Some people think it refers to the layout design of printed matter, including the arrangement of layout elements such as layout center, layout, text, line spacing and punctuation, as well as the arrangement and combination of pictures and texts. Some people think that it refers to the artistic and reasonable arrangement of the structure, hierarchy and illustrations of the original book on the established format, so that all parts of the book are coordinated, comfortable, beautiful and easy to read. Layout design is a proprietary concept in copyright law, but in practice, there are many different views related to it. In addition to layout design, there are terms such as cover design, binding design, typesetting, cover binding and overall design. The nonstandard and inconsistent use of concepts often leads to mistakes in understanding. In the process of court hearing, if the parties advocate the exclusive right of format design, the judge often needs to further clarify the specific content of format design, such as whether it includes cover design, book content and so on. If cover design and book content are included, then "layout design" in this sense actually includes layout design and works.
From the main point of view, the right holder of layout design protection is mainly the publisher. For example, the Copyright Law defines the subject as the "publisher" in the expression of the provisions-the publisher has the right to license or prohibit others from using the layout design of the books and periodicals published by him. If a book or periodical is not specially marked on the copyright page, the publisher should generally be recognized as the exclusive owner of the layout design. If a person other than the publisher is specially marked, in the absence of evidence to the contrary, the marked person shall be recognized as the exclusive right holder of the layout design.
Second, the right restriction of layout design.
Layout design is not a work, but an adjacent right related to copyright. Generally speaking, the originality of layout design is not discussed. The legal basis for the protection of the exclusive right of layout-design as an adjacent right is that the owner and publisher of layout-design have paid intellectual labor in layout-design. Although the originality of this kind of intellectual labor is very low, the law should still give it certain rights to promote the richness of layout design.
But any right is not unlimited and needs to be restricted to some extent. Because the purpose of copyright law legislation is to protect the copyright and neighboring rights of the obligee on the one hand, and to encourage the creation and dissemination of works on the other hand, to promote the development of scientific and cultural undertakings, and to seek the best balance between the obligee and the public is the ultimate goal of copyright law. In order to find this balance, any right in copyright law has certain legal restrictions.
As far as layout design is concerned, the copyright law first gives it exclusive rights, including two aspects: one is its own exclusive use, and the other is to exclude others from using it. Article 36 of the Copyright Law stipulates that publishers have the right to license or prohibit others from using the layout design of books and periodicals published by them. As a consideration, legislators have stipulated certain rights restrictions on layout-design, which are reflected in:
(1) time limit. The exclusive right of layout-design is the right with the shortest protection period in China's copyright law, only 10 year; The term of protection of other copyrights and neighboring rights is 50 years. Once the protection period of the layout-design expires, the layout-design will enter the public domain and anyone can use it freely.
(2) restrictions on fair use. Fair use refers to the situation that the user can use the author and the name of the work without permission and payment under the legal circumstances. When layout design is used, it belongs to personal appreciation research, introduction and comment on a certain issue, reporting current affairs news, official use, etc. Then it is legally "reasonable" and does not have to bear any legal responsibility.
(3) Restrictions permitted by law. If the layout is used to implement the nine-year compulsory education administration and the national education plan, it is reasonable and legal to use its fragments or parts without infringing on other rights holders enjoyed by publishers. However, it should be noted that it is an exception if the publisher declares in advance that it is not allowed to use it.
Third, the "use" mode of layout design in copyright law.
Article 36 of the Copyright Law stipulates that publishers have the right to license or prohibit others from using the layout design of books and periodicals published by them. Accordingly, what kind of situation belongs to "use" in this article is an important basis for determining the protection mode and scope of layout design. According to general language habits, use is to use for a certain purpose, which is a very broad concept. The use in the sense of copyright law is not expressly stipulated by law. Article 10 of the Copyright Law lists sixteen specific personal rights and property rights, including the rights of publication, authorship, modification, reproduction, distribution, lease and exhibition. From the perspective of "use", these rights are acts such as pointing out the edition, signing, copying, distributing, renting and exhibiting. However, due to the different objects of copyright protection, not all rights and behaviors are in the copyright law.
In the exclusive right of layout-design, there is generally no great controversy about the traditional ways of use, such as publication, signature, modification, reproduction and distribution. In practice, disputes often occur under the network environment. In a typical case, for example, a publishing house in Beijing v. a website copyright dispute case, the plaintiff filed a lawsuit on the grounds that the layout design of his book violated the right of information network communication. The first problem to be solved in this case is whether the layout design should be protected by the right of information network communication.
Article 1 of the Regulations on the Protection of Information Network Communication Rights clearly states its legislative purpose: "To protect the information network communication rights of copyright owners, performers and producers of audio and video recordings, and to encourage the creation and dissemination of works beneficial to the construction of socialist spiritual civilization and material civilization". Article 26 also defines the concept of information network communication right, that is, "providing works, performances or audio and video products to the public by wired or wireless means, so that the public can obtain works and video products at the time and place of their choice." Judging from these two provisions, the protection object of the right of information network communication is limited to works, performances or audio-visual products. Layout obviously does not belong to this scope.
The protection of information network communication right is to meet the new requirements of copyright protection under the network environment. Under the condition of Internet, it is very convenient to copy and disseminate works. On the one hand, it accelerated the spread of works and further prospered the cause of culture and science; On the other hand, the cost of infringement is greatly reduced. Internet copyright infringement cases far exceed traditional copyright cases. It is precisely because of this special environment of the Internet that the law should pay attention to the balance between the two when protecting copyright, and should not be lazy or overprotective. Therefore, the right of information network communication only protects works, performances and audio-visual products with high originality, and no longer protects layout designs with low originality.
This does not mean that the layout design is not protected in the network environment. If the layout design is spread on the network and constitutes copying, the publishing house can claim its rights with the right of copying. In a typical case, for example, a publishing house in Beijing v. a digital library in Beijing, the plaintiff filed a lawsuit on the grounds that the defendant copied the layout design of his book without permission and infringed the copyright, and the court supported the plaintiff's claim. However, it should be noted that China's current legislation does not protect temporary copying through caching. Therefore, only in the case of non-temporary reproduction can the layout-design be protected by the right of reproduction.
Fourthly, legislative suggestions to improve the copyright protection of layout design.
With the continuous improvement of people's requirements for book design and the full commercialization and industrialization of publishing industry, layout design will take many forms, some of which may be given more originality. Facing the new environment of layout design protection, it is suggested to improve layout design legislation from the following aspects:
(a) clearly define the statutory concept of layout design. The lack of a clear concept of layout design in copyright law leads to different understandings in judicial practice, and also leads to inconsistent social and legal understanding. The court and the parties have different legal understandings of layout design, which will cause communication difficulties, put forward higher requirements for judges to exercise their interpretation rights, and directly affect the trial effect of the case. Only by defining the legal concept of layout design can we define the specific object of layout design protection and truly establish the authority of judicial protection of layout design.
(2) Clear the exclusive owner of layout design. Generally speaking, the exclusive owner of layout design is publishing house, but with the industrialization of publishing industry, there may be special designers in layout design, so there will be inconsistencies between publishing house and layout designer. How to determine the owner of layout design is a problem that needs to be considered in legislation. According to the general provisions of the Copyright Law, unless otherwise specified, the person who signs a work is the copyright owner. Legislation should be further clarified. If the layout designer is clearly identified in the publication, in the absence of evidence to the contrary, he shall be deemed as the owner of the layout design. In the absence of clear labeling, a book publishing house or magazine can be identified as the right holder of layout design.
(3) Improve the protection of layout design under the network environment. According to the Regulations on the Protection of Information Network Communication Rights, whether a layout design can be protected depends on whether it can become a work, and the key to judging whether it constitutes a work is whether it is original. Therefore, whether the layout design can be protected by the right of information network communication depends on its originality. Generally speaking, layout design can not be protected by the right of information network communication, but with the development of publishing industry, layout design may also be protected as a work because of its high originality. Therefore, in the legislation of copyright law, whether it should be protected by the right of information network communication should not be based on works, performances or audio-visual products, but on originality. In addition, the legal status of temporary copying needs to be further clarified, such as the definition of temporary copying and whether it should be protected by law.