I. Overview of intellectual property rights

(A) the concept and characteristics of intellectual property rights. Generally speaking, intellectual property rights refer to the exclusive rights that citizens, legal persons or other organizations enjoy according to law for their intellectual achievements in the fields of science and technology, literature and art, etc. Intellectual property rights in a broad sense include the rights of the following objects: literary, artistic and scientific works, performances by performing artists, records and radio programs, inventions in various fields of human beings, scientific discoveries, industrial designs, trademarks, service marks, commodity names and signs, and all rights arising from the suppression of unfair competition and intellectual activities in the industrial, scientific, literary and artistic fields. Intellectual property in a narrow sense only includes copyright, patent right, trademark right, name right and the right to stop unfair competition, but it does not include the right to scientific discovery, invention and other scientific and technological achievements. Characteristics of intellectual property (1) Intellectual property is an intangible property. (2) Intellectual property rights are exclusive. (3) Intellectual property rights have the characteristics of timeliness. (4) Intellectual property rights have regional characteristics. (5) The acquisition of most intellectual property rights requires legal procedures. For example, the acquisition of trademark rights requires registration.

(2) Classification of intellectual property rights

1. Copyright and industrial property copyright, also known as copyright, refers to the property rights and personal rights legally enjoyed by natural persons, legal persons or other organizations for literary, artistic or scientific works. Copyright property right is intangible property right, which is based on human wisdom, so it belongs to intellectual property right and is a kind of intellectual property right. Copyright arises from the date of creation of a work. Industrial property rights refer to the exclusive rights that people enjoy in a certain region and within a certain period of time according to the intellectual achievements such as inventions and distinctive signs used in commodity production and circulation. According to the provisions of the Paris Convention for the Protection of Industrial Property, industrial property rights include inventions, utility models, designs, trademarks, service marks, names of manufacturers, source marks, names of places of origin and the right to stop unfair competition. In China, industrial property rights mainly refer to trademark exclusive right and patent right.

2. The right to creative intellectual achievements and the right to industrial and commercial marks. Intellectual property is a general term for rights based on creative intellectual achievements and industrial and commercial marks.

(III) Objects of intellectual property protection Most of the objects of intellectual property protection are the results created by intellectual activities, that is, the so-called intellectual achievements, such as the invention and creation of new products and methods in literary, artistic and scientific works.

Second, copyright.

(1) The concept of copyright, also known as copyright, refers to the property rights and personal rights legally enjoyed by natural persons, legal persons or other organizations for literary, artistic or scientific works. Copyright property right is intangible property right, which is based on human wisdom, so it belongs to intellectual property right and is a kind of intellectual property right. Copyright arises from the date of creation of a work.

(II) Acquisition of Copyright Acquisition of copyright, also known as the generation of copyright, generally refers to the legal facts and legal forms of the generation of copyright, specifically, what is the reason and in what form. In the copyright laws of different countries, the system of obtaining copyright is not the same. Generally speaking, there are two kinds, one is automatic acquisition system, and the other is registration acquisition system. The so-called registration acquisition, that is, the acquisition of copyright is based on the registration procedures of the copyright owner with the relevant copyright management institutions; The so-called automatic acquisition, that is, the acquisition of copyright is based on the author's creation and completion of the work, and there is no need to go through the above-mentioned relevant registration procedures.

1. Substantive conditions for obtaining copyright

(1) The concept of works The works mentioned in the Copyright Law refer to intellectual achievements that are original in the fields of literature, art and science and can be reproduced in some tangible form.

(II) Classification of Works The meaning of the following works in the Copyright Law:

(1) Written works refer to novels, poems, essays, papers and other works expressed in written form;

(2) Oral works refer to works expressed in oral language such as impromptu speeches, lectures and court debates;

(3) Musical works refer to songs, symphonies and other works with or without words that can be sung or played;

(4) Dramatic works refer to stage performances such as dramas, operas and local operas;

(5) Quyi works refer to cross talk, fast writing, drums, storytelling and other works with rap as the main form of expression;

(6) Dance works refer to works that express thoughts and feelings through continuous movements, postures and expressions;

(7) Acrobatic artistic works refer to acrobatics, magic, circus and other works expressed through body movements and techniques;

(8) Art works refer to plane or three-dimensional plastic art works with aesthetic significance, such as painting, calligraphy and sculpture, which are composed of lines, colors or other means;

(9) Architectural works refer to works of aesthetic significance in the form of buildings or structures;

(10) Photographic works refer to artistic works that record the image of objective objects on photosensitive materials or other media by means of instruments;

(11) cinematographic works and works created by methods similar to cinematography refer to works which are shot on a certain medium and consist of a series of pictures with or without sound, and which are projected by appropriate devices or disseminated by other means;

(12) Graphic works refer to engineering design drawings and product design drawings drawn for construction and production, as well as maps, schematic diagrams and other works that reflect geographical phenomena and explain the principle or structure of things;

(13) Model works refer to three-dimensional works made in a certain proportion according to the shape and structure of objects for display, experiment or observation.

2. Procedural conditions for obtaining copyright The Copyright Law stipulates that the works of China citizens, legal persons or other organizations, whether published or not, shall enjoy copyright in accordance with this Law. Copyright arises from the date of creation of a work.

3. Articles not protected by copyright law

(1) This situation does not apply to the object of copyright law (Article 5 of the Copyright Law). It mainly includes: (1) laws and regulations, resolutions, decisions and orders of state organs and other documents with legislative, administrative and judicial nature and their official translations; (2) current affairs news; (3) Calendar, digital table, general table and formula. The exercise of copyright by copyright owners shall not violate the Constitution and laws, and shall not harm the public interests. The state shall supervise and administer the publication and dissemination of works according to law.

(2) Answer the reasons from the perspective of legality and public welfare.

(3) The subject of copyright

1. Authors and copyright owners include:

(1) author;

(2) Other citizens, legal persons or other organizations that enjoy copyright in accordance with the Copyright Law. Note: The author is not necessarily the copyright owner of the work. For example, the copyright of the works completed by employees by taking advantage of their positions belongs to the company.

2. The copyright of a special type of work belongs to a cooperative work, and the copyright of a work jointly created by two or more authors shall be shared by the co-authors, unless otherwise agreed by the co-authors. Where a cooperative work can be used alone, the authors may enjoy the copyright of their respective parts, but the exercise of copyright shall not infringe upon the copyright of the cooperative work as a whole. For a commissioned work, the trustee and the client may agree on the ownership of copyright by themselves. In the absence of special agreement between the parties, the law stipulates that copyright belongs to the trustee. Deductive works refer to works produced by adaptation, translation, annotation and arrangement of existing works. Article 12 of China's Copyright Law stipulates: "The copyright of a work produced by adaptation, translation, annotation and arrangement of an existing work shall be enjoyed by the person who adapted, translated, annotated and arranged it, but when exercising the copyright, the copyright of the original work shall not be infringed. Edited works refer to works formed by compiling a number of individual works or other materials, such as anthologies, periodicals, newspapers and periodicals, encyclopedias, etc. According to the provisions of China's Copyright Law and the Regulations on the Implementation of Copyright Law, the ownership and exercise of the copyright of edited works shall abide by the following rules:

1. Editors enjoy the copyright of their edited works. Editors can be natural persons, legal persons or unincorporated units. Editing works such as encyclopedias, dictionaries, teaching materials, large photo albums, etc. If a legal person or non-legal entity organizes creation, provides funds or materials and other creative conditions, and assumes responsibility, the whole shall be owned by the legal person or non-legal entity. 2. When exercising copyright, an editor shall not infringe the copyright of the original work. That is to say, when editing and creating, if copyright works are involved, the editor must obtain the consent of the copyright owner of the original works and pay him remuneration. 3. The author of an edited work that can be used alone has the right to exercise his copyright alone. Therefore, the copyright of the edited work belongs to the editor as a whole, but the copyright of the work that can exist independently and be used alone belongs to the author of the work. Ownership of copyright in film and television works

China's Copyright Law stipulates: "The director, screenwriter, lyricist, composer and photographer of a film, television or video work shall enjoy the right of authorship, and other rights of copyright shall be enjoyed by the producer of the film, television or video work. Authors of works that can be used alone, such as scripts and music, in films, television and video works have the right to exercise copyright alone. " According to the general principle, the copyright of film and television works belongs to the author, but there are many authors of film and television works, including directors, screenwriters, lyricists, composers and photographers. Except for music, plays or works of art, most of the authors' creations are inevitably integrated into the same form of expression, so these authors cannot exercise their copyright alone. China's copyright law stipulates a statutory system of sharing and transfer, in which authors such as directors, screenwriters, lyricists and composers retain the right of authorship, and other rights are transferred to producers. When there are works that can be used alone, a two-layer copyright distribution method is implemented. Copyright ownership of anonymous works

Anonymous works, or works with unknown authors, refer to works with unknown names, including works with unknown names or without real names. China's copyright law protects anonymous works just like other works. The Regulations for the Implementation of the Copyright Law stipulates: "The copyright of a work of unknown author, except the right of signature, shall be exercised by the legal holder of the work. After the author's identity is determined, the author or heir shall exercise the copyright. " Ownership of copyright of artistic works

Regarding the ownership of the copyright of artistic works, China's Copyright Law stipulates: "The transfer of the ownership of works such as art is not regarded as the transfer of the copyright of the works, but the right to display the original works of art is enjoyed by the original owner." However, the property right in copyright includes the right of exhibition. After the ownership of the original artwork is transferred, who should own the exhibition right? In this regard, proceeding from reality and following international practice, China's Copyright Law stipulates that the right to exhibit the original works of fine arts shall be enjoyed by the original owner, that is, the right to public exhibition shall be enjoyed by the original owner, and the person who obtains the original works shall enjoy the right to exhibit, although he does not enjoy all the copyright of the works.

(4) Content of copyright

1. The personal right of works refers to the right of an author to gain reputation, prestige and maintain the integrity of his works by creating works that express his personal style. This right is enjoyed by the author for life and cannot be transferred, deprived or restricted. After the author dies, he is generally protected by his heirs or legal institutions. According to the provisions of China's copyright law, the personal rights of works include: the right to publish, that is, the right to decide whether a work is published publicly; The right of signature, that is, the right to show the identity of the author and sign his name on the work; The right to modify, that is, the right to modify or authorize others to modify works; The right to protect the integrity of a work means the right to protect the work from distortion and tampering.

2. The property right of works refers to the right of authors and disseminators to use works in some form, so as to obtain economic remuneration according to law. (1) The right to use specifically includes the following contents: 1. The right of reproduction means the right to make one or more copies of a work by printing, copying, rubbing, audio recording, video recording and copying. This is the most basic and important right in the property right of works. 2. The right of distribution, that is, the right to provide the original or copy of a work to the public by way of sale or gift. 3. The right to rent, that is, the right to authorize others to temporarily use film works, works created by methods similar to filming, and the right to use computer software for compensation, except that computer software is not the main object of rent. 4. The right of exhibition, that is, the right to publicly display the originals or copies of artistic works and photographic works. 5. The right to perform, that is, the right to publicly perform a work and publicly broadcast the performance of the work in various ways. Public performance is called live performance or direct performance; Performances that publicly broadcast works in various ways are called mechanical performances or indirect performances. For example, hotels, cafes and other business units play background music without permission, which may infringe on the mechanical performance rights of music works. 6. The right to show, that is, the right to publicly copy art, photography, movies and works created by methods similar to filming through projectors, slide projectors and other technical equipment. 7. The right to broadcast, that is, the right to broadcast or disseminate works in public by wireless means, broadcast works to the public by wired or rebroadcast means, and broadcast works to the public through loudspeakers or other similar tools for transmitting symbols, sounds and images. 8. The right of information network communication refers to the right to provide works to the public by wired or wireless means, so that the public can obtain works at the time and place they choose. 9. The right to film, that is, the right to fix the work on the carrier by filming or similar methods. 10. The right of adaptation, that is, the right to adapt a work and create a new work with originality. 1 1. Translation right, that is, the right to convert a work from one language to another. 12. The right to assemble refers to the right to assemble a work or a piece of work into a new work through selection or arrangement. 13. Other rights to use works that should be enjoyed by the copyright owner. (2) The right to use license refers to the right of the copyright owner to license others to use the work according to law and get remuneration. A licensing contract shall be concluded with the copyright owner for the use of other people's works, unless it is legally permitted. (3) The right of transfer refers to the right of the copyright owner to transfer one or more rights in the right to use according to law and get remuneration. (4) The right to remuneration refers to the right of the copyright owner to receive remuneration for using or transferring a work according to law.

(5) Exercise and restriction of copyright

1. Ways of exercising copyright: direct use by the copyright owner, use after transfer, use after permission, etc.

2. Copyright restrictions

(1) The term of protection of copyright refers to the period when copyright is protected by law or the effective period of copyright. During the period of copyright protection, the copyright of a work is protected by law; When the copyright expires, the copyright will be lost, and the work will enter the public domain and will no longer be protected by law. The term of protection of the property right of a work is limited, which varies according to the subject of copyright and the nature of the work:

(1) The author of a work is a citizen, and the protection period of the property right of his work is 50 years after the author's death. After the author's death, the protection period begins at 65438+ 1 in the year following the author's death and ends at 65438+3 1 in the 50th year.

(2) The copyright of a work of a legal person or entity without legal personality (except the right of signature), and the protection period of the right of publication, use and remuneration enjoyed by a legal person or entity without legal personality is 50 years. However, if the work is not published within 50 years after the completion of its own creation, the copyright law will no longer protect it.

(3) The right to publish, use and receive remuneration for films, television and video works. The copyright protection period of photographic works is 50 years, ending at 65438+February 3 1 day in the 50th year after the first publication of the works. However, if a work is not published within 50 years after its creation, its copyright will no longer be protected.

(4) The term of protection of the right to publish, the right to use and the right to receive remuneration of a cooperative work shall be fifty years after the death of the author, but the starting point of fifty years shall be the death of the last co-author.

(5) The protection period of the right to use and receive remuneration for works with unknown authors is 50 years, ending at 65438+February 3 1 day in the 50th year after the first publication of the works. However, once the author's identity is determined, the general provisions of the copyright law shall apply.

(6) The exclusive publishing right of a book publishing entity. According to the contract, the exclusive publishing rights of book publishers shall not exceed 65,438+00 years, and the contract may be renewed upon expiration.

(7) The term of protection of the right to use and the right to receive remuneration for audio and video recordings is fifty years, ending on 65438+February 3 1 day in the fiftieth year after the first publication of the works.

(8) The protection period of the right to use radio and television programs and the right to receive remuneration is 50 years, ending at 65438+February 3 1 day in the 50th year after broadcasting.

(2) Fair use 12 Fair use: 1. Use published works of others for personal study, research or appreciation; 2. In order to introduce and comment on a work or explain a problem, appropriately quote the published works of others in the work; 3. To quote published works in newspapers, periodicals, radio, TV programs or news documentaries in order to report current news; 4 newspapers, periodicals, radio stations and television stations publish or broadcast editorials and commentator articles published by other newspapers, periodicals, radio stations and television stations; 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. Translation or reproduction of a few published works for classroom teaching or scientific research in schools for use by teaching or scientific researchers, but not for publication; 7. State organs use published works for the purpose of performing official duties; 8. Libraries, archives, memorial halls, museums, art galleries, etc. Reproduce the works collected by the library for the purpose of displaying or saving the version; 9. Performing published works for free; 10. Copying, painting, photographing and video recording works of art set up or displayed in outdoor public places; 1 1. Translate the published Han characters into minority languages and publish them in China; 12. Publish published works in Braille. The above provisions apply to restrictions on the rights of publishers, performers, producers of audio and video recordings, radio stations and television stations.

(3) Legal license The use of legal license refers to the paid use of other people's published works in a specific way without the permission of the copyright owner, and such use should respect other personal interests and property rights of the copyright owner. There are the following situations: 1 Textbooks compiled and published for the implementation of the nine-year compulsory education and the national education plan (the author declared in advance that they are not allowed to be used); (2) After the works are published by newspapers and periodicals, other newspapers and periodicals can reprint excerpts (the author declares in advance that they are not allowed to be used); 3. Works that have been published in newspapers or spread on the Internet can be reproduced and edited on the website (the author declares in advance that they are not allowed to be used); (4) producers of sound recordings make sound recordings by using music works that have been legally recorded as sound recordings by others (the author has declared in advance that they are not allowed to use them); 5. Radio stations and television stations broadcast published works of others; Radio and TV stations broadcast published recordings.

(4) Compulsory license Compulsory license refers to the system that under certain conditions, the copyright authority authorizes and approves the use of published works according to the user's application, and the user should pay remuneration to the copyright owner without obtaining the consent of the copyright owner.

(6) Neighboring rights

1. The concept of neighboring right refers to the right adjacent to copyright, and its exact meaning should be the right enjoyed by the disseminator of the work.

2. Types and contents of neighboring rights In China's copyright law, neighboring rights include the rights of publishers, performers, producers and radio and television organizations.

(7) Copyright protection

1. Acts of copyright infringement Articles 47 and 48 of China's Copyright Law respectively stipulate acts of copyright infringement. Among them, Article 47 stipulates the following acts of copyright infringement: (1) publishing a work without the permission of the copyright owner. (2) publishing a work created in cooperation with others as a work created by oneself without the permission of the co-author. (3) did not participate in the creation, in order to seek personal fame and fortune, signed in other people's works. (4) distorting or tampering with other people's works. (5) plagiarizing other people's works. (6) Using a work by exhibition, photography or similar photography, or using a work by adaptation, translation or annotation without the permission of the copyright owner. Unless otherwise provided by the copyright law. (seven) the use of other people's works without payment. (8) Without the permission of the copyright owner or copyright-related obligee of film works and works created by similar film production methods, computer software and audio-visual products. Rental of his works or audio-visual products, except as otherwise provided by the Copyright Law. (9) Using the layout design of books and periodicals published by publishers without their permission. (10) Live broadcast or public broadcast or recording of a live performance without the permission of the performer. (1 1) Other acts that infringe copyright and copyright-related rights and interests. Article 48 of the Copyright Law stipulates the following acts of copyright infringement: (1) Reproduction, distribution, performance, projection, broadcasting, assembly and dissemination of his works to the public through information networks without the permission of the copyright owner, unless otherwise stipulated in the Copyright Law. (2) publishing books in which others enjoy copyright. (3) Reproduction and distribution of audio and video products of their performances without the permission of performers, or dissemination of their performances to the public through information networks, unless otherwise provided by the Copyright Law. (4) Reproduction, distribution and dissemination of audio and video products made by the producer through the information network without the permission of the producer, except as otherwise provided by the Copyright Law. (5) broadcasting or reproducing radio and television without permission, except as otherwise provided by the Copyright Law. (six) without the permission of the copyright owner or copyright-related obligee, deliberately avoiding or destroying the technical measures taken by the obligee to protect the copyright or copyright-related rights of his works, audio-visual products, etc. Unless otherwise stipulated by laws and regulations. (7) Deliberately deleting or changing electronic information on rights management such as works, audio-visual products, etc. Without the permission of the copyright owner or copyright-related obligee, except as otherwise provided by laws and regulations. (eight) the production and sale of works signed by others.

2. The legal liability for copyright infringement is civil liability. Article 47 of the Copyright Law stipulates: "Anyone who commits one of the following acts of infringement shall bear civil liabilities such as stopping the infringement, eliminating the influence, publicly apologizing and compensating for the losses according to the circumstances: (1) publishing his works without the permission of the copyright owner; (2) publishing a work created by oneself in cooperation with others as one's own work without the permission of a co-author; (three) did not participate in the creation, in order to seek personal fame and fortune, published in other people's works; (4) distorting or tampering with other people's works; (5) Using a work by means of performance, broadcasting, exhibition, distribution, shooting, video recording, adaptation, translation, annotation or editing without the permission of the copyright owner, except as otherwise provided by this Law; (six) the use of other people's works, not in accordance with the provisions of the payment; (seven) live broadcast of their performances without the permission of the performers; (8) Other acts that infringe copyright and rights and interests related to copyright. " Article 48 stipulates: "Anyone who commits any of the following acts of infringement shall, according to the circumstances, bear civil liabilities such as stopping the infringement, eliminating the influence, publicly apologizing, and compensating for losses, and may be given administrative penalties such as confiscation of illegal income and fines by the copyright administrative department: (1) Plagiarizing or plagiarizing other people's works; (2) reproducing and distributing his works for profit without the permission of the copyright owner; (3) publishing books with exclusive publishing rights enjoyed by others; (four) without the permission of the performer, publishing his audio and video products; (five) without the permission of the producer of audio and video recordings, reproducing and distributing the audio and video recordings made by him; (six) unauthorized reproduction and distribution of radio and television programs produced by radio stations and television stations; (7) Producing or selling works of art with forged signatures of others. " If copyright or copyright-related rights are infringed, the infringer shall compensate according to the actual losses of the obligee; If the actual loss is difficult to calculate, it may be compensated according to the illegal income of the infringer. The amount of compensation shall also include the 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 determined, the people's court shall award compensation of less than 500,000 yuan according to the circumstances of the infringement. The second is criminal responsibility. For the purpose of making profits, anyone who commits any of the following cases of copyright infringement, with a relatively large amount of illegal income or other serious circumstances, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and shall also, or shall only, be fined; If the amount of illegal income is huge or there are other particularly serious circumstances, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined: (1) Reproduction and distribution of written works, music, movies, television, video works, computer software and other works without the permission of the copyright owner; (2) Publishing books with exclusive publishing rights enjoyed by others; (3) Reproduction and distribution of audio and video products made by the producer without the permission of the producer; (4) producing or selling works of art with forged signatures of others. Note: The above contents mostly refer to network resources, and the copyright is basically subject to the newly revised Copyright Law. There are shortcomings and shortcomings.