On the Right of Communication through Information Network

[Paper Keywords) Information Network Transmission Right Copyright Information Network Transmission Right
[Abstract) This paper together with the right to network dissemination of Information about infringement-related Information to discuss how to recognize the right to network dissemination of Information to analyze the nature of the concept and identified. On the upcoming <<Information Network Transmission Right Protection Ordinance>> a few suggestions, in order to promote the right of communication of the information network Legislation.

1 "Under the Banyan Tree" website case of infringement of Information Network Transmission Right
So in Shanghai in 2004, one case: Shanghai Computer Company Limited under the banyan tree in the "Global Chinese original works under the banyan network" available to the public on the <"What I was not an angel>> Download and Lyrics album services, Warner Music shares were Limited to court. Shanghai Second Intermediate People's Court on May 10 the first instance ruling on the case: the banyan tree companies have to operate in their "Under the Banyan Tree" website published apology, but also for their own violations to pay 1.5 million to Warner compensation payment. As early as 2003, Warner found in the "banyan tree" site can listen or download <"What I was not an angel>> album. The album contains concert Na Ying The <<laugh it off>> other 10 songs. Warner Company believes that, "Under the Banyan Tree" site without their permission, on the launch of Love, download service, in violation of their rights in the sound recording producers right of network communication. banyan Under the company explained that the album they offer is to introduce the comments section to download Music programs and some of their original Chinese works online, so they use the recordings should be the Law of the "fair use" of the situation. but because of "banyan Under the "Web site provides services to download lyrics, in fact, Warner has affected the normal use of their sound recordings, led to the dissemination of their information networks and distribution of the sound recordings when the sound recordings, obtained the legal benefits may be reduced Therefore, the "banyan tree" sites offer services to download Love is not a "copyright" fair use provisions.

By Law, producers of audio and video recording without permission, copy, distribute, communicate to the public through the information network of its audio and video products produced by the DepArtment of infringement. The court finds that under the banyan tree in "Under the Banyan Tree" website to provide Na Ying << I am not an angel>> Album lyrics download link Warner to the public dissemination of the behavior of sound recordings infringed Warner's recordings of the album have the right to network dissemination of information. This is a right of communication on information networks infringement case, the key question is how to understand the right to network dissemination of information.

2 Information Network Transmission Right of international and domestic legislation
2.1 Information Network Transmission Right of international legislation
December 20, 1996, World Intellectual Property Organization meeting in Geneva, through the <<World Intellectual Property Organization Copyright Treaty>> (WCT) and "<WIPO Performances and Phonograms Treaty>> (WPPT) . in the WCT in Article 8, literary and Artistic works enjoy the exclusive right to authorize its work by wire or wireless communication to the public, including its work to the public, members of the public in their personal chosen place and time to obtain these works. WPPT Article 10, the performer shall enjoy the exclusive right to authorize by wire or wireless means available to the public of their phonograms, so that the sound recordings for members of the public in its place and time individually chosen to obtain. can be seen from the above two requirements, compared to the Berne Convention, the right of the cover has been effective in cyberspace. Japan, June 10, 1997, adopted amendments to the Copyright Law require the copyright owner to license their works shall enjoy the exclusive right of public transmission of Sichuan. Australia has proposed a broad "right of transmission to the public", both through the receiving device in any way of viewing or using communication to the public, also includes the right to broadcast and cable rights. Court
WIPO Copyright Treaty in the two "transfer" only "to the public," the transmission, namely the transmission of non-specific object, the means of communication such as e-mail transmission works of others, should not belong to transmit power control. As for the enterprise or through the Internet in a dedicated unit within the network, the transmission to a pArticular object, at least in part also should be excluded from the "public" transport outside.

Therefore, the author refers to the network transmission of power enjoyed by the creative work itself uploaded onto the Internet server, or permit others to commit such acts for the public through the Internet options and the right to access to these works. Any person who without license, may, without the works of others on the Internet transmission.

2.2 Information Network Transmission Right of domestic legislation
In the early 1991's copyright Law provides the copyright owner's rights, including personal rights and property, but it was not clearly stated, "Information Network Transmission Right" concept. In the New "<Copyright Law"> in the "Information Network Transmission Right" and the basic concept can be regarded as "import" is two "Internet Treaties" promise. Information Network Transmission Right before the creation, although some views that the existing provisions of the original copyright law can be applied directly infringement on the Internet, or at least from the current in the law "such as" to be adjusted, but the legislation did not accept this view community .2001 <<Copyright Law "> chose the European Union and the two" Internet Treaties "Add the right model, gives the first public the copyright owner the right to network dissemination of information. New "<Copyright Law"> to 1990 <<Copyright Law "> Article 10 provides that" property rights of the "broken down into 17 specific rights, which increased at 12 and establish a" Information Network Transmission Right ": A wired or wireless means to provide the public works, so that the public may, in its time and place individually chosen to obtain the right to work downtown. It can be seen, the right to network dissemination of information has three elements:" the public "," the time of their choice, "" the place of their choice. "Three elements are essential, otherwise not in compliance with the concept of the right to network dissemination of information, but should belong to the right of reproduction or other rights. For the" public "concept should be understood as the right to network dissemination of information is only applicable to wide area networks, does not apply to the LAN. because the works of local area network transmission limits the geographical scope of the recipient, so that it can not be selected in their personal access to the work place. scientific Research institutes, tertiary institutions, enterprises and other units within the network share information on whether violations of the right to network dissemination of information? these issues to be resolved.

3, the right of communication of the nature of information networks found
Information Network Transmission Right is a new intellectual property. In accordance with its concept can be summarized into four basic characteristics: First, the rights enjoyed by the copyright owner, only its own or with its authorization before they can spread to the public through information network, without the permission of the author, through the information network to disseminate their works to the public, it should be according to conditions stop the infringement, eliminating the effects of apology, compensation for damages, if the damage to the public interest, will be subject to administrative and even criminal penalties. The Second, the work is based on wired or wireless communication manner, that is not limited to the Internet, but also existing and possible other networks. Third, the work of network communication is public, any public have access, e-mail such as point to point communications should be excluded; Fourth, the work is interactive network communication, the public can be selected at a time and place personal gain, public access is active, not passive acceptance. Information Network Transmission Right as A new copyright law right, with its own special properties, it is a collection of rights, moral rights with both the nature of nature but also has economic rights, and the right of reproduction, distribution rights and other rights and the right of the traditional economy, protection works integrity and other rights of both the different tradition, but also have the right to integration and cross.

Special emphasis on new copyright law performers and sound recordings, video recordings and other adjacent owner the right to network dissemination of information, its thirty-seventh Clearance and provides his performance right to authorize others to the public through information network to disseminate his performance and the right to remuneration; 第四十一条 provides audio and video producers of audiovisual works produced by its right to authorize others to reproduce, distribute, lease, communicate to the public through information network the right to receive remuneration. From watching these legal provisions, Information Network Transmission Right and other copyright as the main body of their rights, including copyright and neighboring rights of people, rights object is protected by copyright of literary, artistic and political, economic, science and technology and other non-public areas of work. From the above regulations may clear that our legislators is to the right to network dissemination of information as a pure property rights to look at. So the right of communication from the ownership of information networks in nature, it belongs to the scope of economic rights.


4 Right to Network Dissemination of Information legislation defects and improving proposals
4.1 Right to Network Dissemination of Information legislation defects
In fact, China 2001 <<Copyright Law "> successful copyright interest of 17 segments, particularly the creation of information network communication right, and its relatively accurate definition, can solve the world on the network communication Set between the rights disputes on the issue problem. But the new copyright law provides the right to network dissemination of information also inadequate, mainly reflected in the grasp of Information Network Transmission Right there on the following shortcomings: Links to Research Papers Download http : / / www.hi138.com (1) "information network" to refer to is unknown. in China has promulgated laws and regulations related with the network and department regulations, the relevant specific name for the network are: <<National People's Congress Standing The Committee's decision on safeguarding Internet security >>,<< Internet Information Services>> used the "Internet", "<PRC Computer Information Network and the Internet regulations >>,<< Security of Computer Information Network and the Internet Regulations>> the "Computer information network" and <"China Public Administration of International Networking of Computer Internet>> in the CHI-NANET related call and so on. Although these different names, including" computer information network "may include" Internet "and" Internet "and may contain" CHI-NANET ", but whether it is" Internet "or" computer information network ", basically is a specifically defined scope or content of call, no ambiguity. The "network" or "information network" is are quite different, they do not like the "Internet" means the same as a specific generation, can not be like "computer information network" as clearly reflected in the context of certain specific technology specific things. For example, in 19% of the Commercial Press edition of the <<Modern Chinese Dictionary>> in the "network" explained that "a network of things; means something by many interwoven components of the system; in the power system in composition by a number of components used to transmit electrical signals according to certain requirements, or a part of the circuit ", that is, if we" made up of many interwoven system composed of things "to understand the network, it can mean on behalf of the many real life tangible and intangible things, such as "distribution network", "Power Network", "water network", "transportation network", "interpersonal networks", and so on. Even with the "information" and become "information network", its scope is also more general, as long as the passing of "information" and "network" should be counted as "information network", then pass messages between people, oral specific channels will be called "information network "Information networks are" information network ", and we can also say that the ancient Great Wall is truly a" information network ", but we are clearly not in this new copyright law," Information Network Transmission Right "to be regulated .

(2) the definition of a problem. "So that the public can be individually selected to obtain the time and place of work" is not the nature of the core features of network communication, the characteristics of the spread of this unique feature, as listed in the network, there seems to Almost all of the suspected bias. Seen in this light, the expression of new copyright law is not essential to the essential characteristics of network communication, such as SMS, online advertising probably do not meet this characteristic. So, what is the network communication The essential feature of it? scholars generally believe that global (borderless nature), interactivity, multimedia and hyperlinks. These features than "the public may, in its time and place individually chosen to obtain work", should be network communication more fundamental and core features, it should in the "Right of Communication through Information Network" has been reflected in the definition. Although in 2001 <<Copyright Law "> in fact clear the network environment protection of copyright and neighboring rights, but in most cases Scholars believe that "copyright protection under the Network there are still many problems." such as <<Copyright Law "> on the various links through the Internet, ISP, ICP, and other service providers and other important issues were not the legal responsibility to do a clearly defined, the State Council has yet to be forthcoming <<Information Network Transmission Right Protection Ordinance>> to make specifications.

(3) China established "Right of Communication through Information Network" caused controversy. In our copyright law and the right of communication not clearly defined circumstances, the direct provision "Right of Communication through Information Network", appears to lack basic rights are not beneficial to the whole system of copyright scientific and stability. whether it is the old copyright law of China or the new copyright law, special provisions are not specific terms the right of communication, but the implementation of the Copyright Law in the old Ordinance, Article V with the provisions of the relevant communication, that: "By radio waves, spread of cable television system works right. "Well, in this case, right away across the communication network dissemination of information directly to define the right, it will have a variety of problems. For example, the right to network dissemination of information but right of communication in one, and direct provision for the right to network dissemination of information but also specify what is meant "the right of newspapers and magazines spread", "radio and television transmission rights" it? from the other side, with the "Right of Communication through Information Network "is not still have to specify what" information network distribution rights, "" rental rights information network "mean? In other words, the right to network dissemination of information on both the lack of communication right the first definition of the rights in the whole system has become too specifically, it will inevitably produce a variety of "unfair treatment" or omissions of the phenomenon, is likely to disrupt the stability of the system of copyright rights.

4.2 Legislation proposals
New copyright law for the problems and the forthcoming this year <<Information Network Transmission Right Protection Ordinance>>, made the following recommendations:
(1) a clear "information network" to refer to the meaning and. "Information network" is revealed only thing they want to refer to the characteristics of one aspect: the "network" and not clearly an important aspect of the characteristics: "by the computer and other electronic information technology related product or technology components," can really reflect the meaning of the clause refers to whether the "computer information network" or "electronic information network," or the creation of a combination of both the definition of more is exactly what? and even if you want to use "information network" term, it is necessary or relevant in terms of specific implementation details to be explained and detailed, clear information on the content and refer to the network.

For the definition of the problems, there are two solutions: one is completely < > The "right of communication to the public" concept, but the state, including network communication, broadcasting, performance, dissemination of other new category of rights of all rights; the second is to redefine the right to network dissemination of information, summarize its essential character, reflecting the global (non- borders of), interactivity, multimedia and hyperlinks. No matter than "a wired or wireless means available to the public work", or "so that the public can be individually selected to obtain the time and place of work", in fact should is the "Internet Communication" nature and characteristics of the core, should be reflected in its definition, or not enough to accurately define the term "Internet Communication."
(2) The right of network communication is not exactly the same as the traditional right of reproduction, or distribution rights, or the two together. The traditional rights of reproduction and distribution rights, whether from the communication channel, in the form, are far removed from the network communication. To get rid of the West the impact of the law creating the network, in the "<Copyright Law"> Amendment and the right of reproduction in the creation, distribution rights, etc. Information Network Transmission Right alongside the need for honesty in the world, so far few countries in the legislation is still clearly the rights of the new This concept gives the copyright owner's rights, the Chinese created the right to network dissemination of information, but should be fully affirmed. as to really solve the problem of the first two will no doubt improve the information network communication right, in the forthcoming <<Information Network Transmission Right Protection Regulations>> the filled trap, to further clarify its defining characteristics, for the scope of protection. to implement the law, truly fair and just. so as not to cause controversy, the real everyone's support.

5 Conclusion
Right to Network Dissemination of information should be said that in an information network era, in the information society is indeed becoming more and more important. For e-commerce, if we look at from the perspective of information flow, logistics, capital flow, information flow I think is mainly related to information right of network communication problems. At present, such as the right of information network communication and network-related rights have been the concern of society and the national leadership: the Fourth Plenary Session of the Tenth A foreign reporter asked Premier Wen Jiabao on the issue asked about his reference to the Internet two things: First, George Bernard Shaw said: "Liberty means responsibility." Second, the United States Strong Sharansky said: "If you talk about democracy, not to stay at home reading of Aristotle, but to many subway and bus. "In addition, Premier Wen also stressed:" Everyone has to comply with the law and order, and absorb the advanced management experience the Internet. "" network to disseminate correct information, not to mislead the masses, not to harm society public order. "Although the current right of communication of the information network remaining gaps in terms of legislation, but I believe in the near future, with the <<Information Network Transmission Right Protection Ordinance>> The introduction of the right of communication of the information network and other the legislative network will have a qualitative leap. will be more standardized to adjust the network behavior more rational, better to create a harmonious and healthy network environment. reposted elsewhere in the Research Papers Download http://www.hi138. com