Works on paper words false infringement

Keywords:: authorship; authorship infringement; false; well-known writers; of

Summary: One of the legal significance of authorship is clear ownership rights of the works, maintenance works of a pArticular style of writing. False infringement as a new form of infringement, with the formal legitimacy of subjective intentional, infringement object specific and subtle behavioral characteristics, its essence is unknown the name of a pArticular subject or signed (with the famous author's name or signature identical) to take well-known writer, said the publication name or signature, publication, reproduction, sales of infringing works. false Elements of infringement, including damage to well-known writer, the fact that the existence of the right to object against the well-known writer, false hidden external behavior and other aspects of intentional false. The current copyright infringement Laws Relief system has its undistributed, with only the copyright registration system to establish and improve and enrich the existing copyright Laws, increase the signature of the copyright owner or the specific accompanying obligations to effectively prevent the occurrence of false violations, protection of well-known writer is not signed fraudulent use, to stimulate the enthusiasm of Artists and creative potential into full play.



First, the written works of the Law tort of false

(A) the right of authorship and legal significance of the substance

Authorship is the copyright owner of a basic human right to protection of authorship is the general practice around the world, China's Copyright Law Article 10, paragraph 2 provides that "the right of authorship, that is indicated on his name on the right in the works." From one can see that the so-called right of authorship, that of a specific work that his true identity, and the name (real name, alias, pseudonym, alias, etc.) characterized work on, to prove or declare the creation of this work for The either-right of the author. authorship of the work the subject of rights must be the real author of works of authorship must be linked to that of the true identity of the specific works, not associated with the work signed, not the Copyright Law sense of signature.


One of the main contents of the right of authorship, is on leave to others the right to prohibit use, theft and apply their signature or a specific identity to publish, copy, sell work, and the infringement of rights and derivative rights of the original request and select a specific methods, approaches, and the right to legal proceedings for relief.


As the exclusive right of authorship, no doubt means the right to choose the way in which of the signed or not signed. But, of authorship should be exercised in good faith, must conform to the principle of good faith, that of authorship, while the exercise may not infringement of the right of authorship, including promising not prohibited by law or public morality incompatible name. authorship legal significance, requiring the signature of the act must meet the basic requirements of copyright law and the basic spirit. from the meaning of copyright law performance on the authorship form of analysis, the authors of the signed acts including the signature of the characterization and description of the signature of the other, consequent complete sense of the real signature act shall meet the following conditions: (1 signature should have authenticity. The signature must be the work of the real name or that of the true identity of the specific works. of the DepArtment on the work in the name of the author's real name can also be the alias for the author, pen name, pseudonym or nickname, etc., but of the author's real name or alias, pen name, pseudonym or nickname to be my first, rather than others, and secondly, that signature must be real, not fake. (2) The signature should have the recognition. that the author Works Department on the name must be in the works of other authors on the name of the Department of strictly separated, the signature shall not be confused with other authors. with the same name in the signature should be that of the same name of the other different characteristics, in particular should be In the signature of the author's presentation of the main characteristics such as gender, ethnicity, place of birth, place of residence, occupation, work unit, experience, performance and other matters as the necessary instructions to make them the same name of the other phase difference. (3 signed should be significant. that should be in the works of prominent positions, or for other readers, the way the public to easily identify the true representation of the name or the specific work that the author's true identity.


(B) of the false and the basic features of tort

False, fraudulent use, also known as signed, that is infringing the right of the name or names of people abuse the right to change, by changing the name to avoid legal actions, etc., will work - work is often shoddy, fraudulent use of well-known writers or best-selling author's name or signed publication, publishing, to get the honor, and reap the economic benefits of illegal infringement. bogus copyright infringement in the field in recent years a new form of infringement, and has become worse. false aspects of tort law has the following characteristics :

1, the formal legitimacy. False signature in the form of features from the point of view, seems to be no violation of the rights of other authors, because the false infringement, false infringing works in particular called on the Department of themselves through the legal process of registration or change the name. solely from the perspective of the right of the name, the behavior of people registered through the legal process or change the name, or obtained the right to use the name of another person's behavior is legal. as from the authorship of the form, the perpetrator of or the copyright owner to use their own registration or through legal procedures to change the name of published works, also has a form of legitimacy. it without their permission, made on behalf of others, copy, sell signature work is fundamentally different misappropriation .


2, the subjective intentional. False registration of the infringer through the legal process or change their names, the names of others to obtain the right to use the real purpose is not to, exercising the right of their name or the name change right, but often for the use of celebrity, famous writers of the signature to apply The free-riding behavior to reap the economic benefits and specific criminal social status, to squeeze the market work for illegal purposes.


3, the specific nature of infringing objects. False object of infringement, without exception, well-known writer, bestselling author of a famous writer or writers, hereinafter referred to as signed. This is because the writers, the signature of the signature of general do not have the social reputation and market influence, only the fraudulent use of well-known writers signed to publish, copy, sell works to the infringer to bring the greatest economic benefits, to seek their own means and procedures can not be properly obtained illegal benefits and social status.


4, the behavior of concealment. And the misappropriation of another signature, name confused, in name only, co-works will be signed as a separate work compared to other violations, false means of infringement to the infringer generally have quite covert.


Second, the written works constitutes infringement of elements of false

The essence of infringement false unknown name of a particular subject or signed (with the famous author's name or signature exactly the same), take the well-known writer, said the name or signature publication, publishing, copy, sell the right to abuse the work. The Forms can be said that there are many types of instruments can be quite subtle, and its great social harm. It undermines the reader's interest, disrupting the normal market order and the copyright infringement of lawful rights and interests of the well-known writer and social image. false infringement as a The new copyright infringement, its constituent elements, including the following:

(A fact the existence of damage

False false to the fact that the damage was caused false personal well-known writer, substantial property damage, such damage is the fact that: (1) well-known writer in the loss of property, that works because of false books crowding out the market well-known writers space, or because of the proliferation of fake work and reduce the social reputation of famous writers famous writers leaving readers to reduce or so publishers are no longer co-operation with the well-known writer, so realistic are false against the economic interests of writers . (2 well-known writer in the loss of spirit, that works because of the proliferation of false and derogatory social image of well-known writers, invite the reader to the social and the negative evaluation of well-known writers, to the emotional pain caused by well-known writers . If the false works of poor quality, damage the reputation of being false writers, reducing consumer groups, lead to misunderstanding and criticism of the consumer; Another example is the result of false acts of conflicts and misunderstandings between writer and so on. From this point of view alone Some scholars believe that those against the false reputation of the plaintiff's right, it seems not unreasonable. [1] I do not agree. After all, counterfeit works of the defendant's name and linked to the right of authorship in the legal dispute is more qualitative convincing.


(B) the object is against selling works of well-known writer or writers

Maximum benefit from the act of principle, false, without exception, the object of tort as well-known writers of the signature, which is the biggest characteristic of false violations. Therefore, the "famous author" and "well-known works," the judge and found to be false identified important basis for infringement. generally believed that the judge and recognize the "famous writer" and "well-known work" The fundamental basis are: (1 reader and audience specific areas of social work authors name and the name of a higher awareness level. Yang Zhixiang Papers infringing works false word is well-known, best-selling works of important standards. there readers and audiences in specific areas of the community, refers to the specific writers and works in the community of readers, a subject area professionals and distributor of the work, etc. . false infringement of the "famous" is just a higher social awareness and social influence of a particular writer's name, pseudonym or other title means. (2 works of writers widespread. writers must be broad scope of work to broaden their influence, will be known and accepted by the general public, will be "known". "known" is often associated with quality of work has nothing to do with the number, many writers tend to become famous because of a work. (3 must geographic scope and time frame limitations. the works of famous writers tend to be national, even worldwide, and can be sustained beyond the time limit to exert influence. but some of the best-selling author's works only in a certain period within a certain space has a brilliant achievement and a larger market space. So, these writers in a particular time and space can also be identified as "known" authors, thus becoming the object of false violations.


(C) of the recessive behavior of the external false

False is a tort, is bound to a certain external forms. Compared with the general copyright infringement, false violations typical covert. Generally speaking, hidden from the external behavior of the following false to judge aspects: (1 infringement on his work in the Department on its own, but with the same well-known writer, name, and the work is published and has been a significant issue publicly. (2 person in the violation selection of works, story, narrative style, work style or Graphic Design work has been published and well-known writer, published works are very similar. (3 people from a particular signature violations because of their well-known writer and the authenticity of the same can identify significant deficiencies and the necessary instructions and notification obligation. (4 Content of the book, the violations are often a lot of work to do with nothing, seriously misleading statements and that audience, they were associated with famous writers the name and style of his work has some relevance with the aim to further exclude the reader suspicion of piracy, prompting readers to work in the absence of prior false reading would be mistaken for a well-known writers or new work, so do not hesitate to buy the work.


(D) intentional false

Willful infringement is false false subjective factors. As mentioned earlier, false infringement of a particular substance is unknown subject's name or signature (with the famous author's name or signature identical) to take well-known writer, said publication name or signature , publish, copy, sell the right to work abuse. false false tort of intentional human focus manifested in his name to the name change behavior and such behavior does not license the legitimate purpose of this point, because the false infringement actors through legal procedures and name change and get people the right to use the name, the purpose is not being local, the name of the legitimate exercise of the right to use, but rather see the name or names of the famous author's name or signature with identity, the Department will work on tort themselves, in order to produce the same well-known published writers, publishing, copy, sell works of the same social effects and market influence. false pursuit of tort is that people with well-known published writers, publishing, copy, sell works of the same social effects and market influence.


How to identify deliberate, scholars of Civil law doctrine and the concept of meaning has always been there battle doctrine. By means doctrine, the behavior of people not only want to know the consequences, but also demonstrate the occurrence of the consequences of holding on or letting the pursuit of the psychological, can be found on the subjective intent. the concept of doctrine is that if one held by the psychological state of the results from the understanding of factors to determine their own behavior, therefore, proof of intent to the perpetrator of the act as foot predictable results. Since the right of authorship right from the original name of Civil rights or the name of the main power, and because of the name of the external features and characteristics of Chinese characters, so there are a lot of objective phenomena of the same name. Therefore, in general, and the names of famous writers or signed by the same individual, in his own name published, publishing, copy, sell work, but not with the pursuit of well-known writer published, publishing, copy, sell works of the same social effects and market influence of illegal purposes, you should not identified as at fault. Therefore, in theory, the meaning of Marxist definition of course, more deliberately, because it emphasizes the psychological state of the perpetrator's awareness of factors, but also stressed the will of the factors. But from the perspective of the evidence, and sometimes behavior is difficult to explore the behavior of the real will of the people, then you need to know from the parties know these factors and behavior will push factors. willful infringement false, false false understanding of who not only has the capacity to copyright infringement and has recognized the fraudulent use of well-known writer's signature is a violation of well-known writer, authorship, and false are the consequences of such violation is taking a positive attitude towards the pursuit. can be argued that subjective fault of false violations must be intentional, negligent false does not constitute infringement.


Third, the written works of the law tort remedies false and Legislative Measures

(A) of the Legislation of false violations tend to unite in the Limitations

1, the view that false violation of copyright infringement, copyright law should be adjusted. To be false in the false works of those who work non-cases, that the violation of the writings of the whole fake imitation of the target of the abuse were the work of being false whole, including existing work and future works of, or violation of moral rights. In fact, "moral rights" also known as "moral rights", it and the Civil law's "moral rights" in nature is the same, Civil law the personality rights. France Kelong Bei that moral rights are actually part of the right person. Indeed, protection of personal rights, the spirit of the law is not only the rights of the copyright law, Civil law also protects, but also protection of criminal law, unfair competition, trademark method, the quality of law, legislation and various legal name can be protected. Moreover, false infringement of moral rights is violated, can result in violations of property rights, the more can be adjusted by the Law.


2, the view that, under the guise of another name, the name of their works published works or the infringer's name infringed on civil rights, false at this time has nothing to do with copyright infringement should be subject to the public without copyright laws and regulations control the system, that moral right to say just based on their proof of the need for abstract hypothesis, there exists from the works of the so-called moral rights. on this view, I believe that, in addition to the first view can be used to deny, but also from another angle that is, except against the copyright, the copyright related copyright infringement may be based entirely "anti-unfair competition" provisions to regulate this false behavior.


3, another point of view, by the trademark law, unfair competition law, the name of legislation, and the market, commodity, business-related economic legislation to adjust, from which some or a few to adjust. I believe that the application of the law is limited, should be limited to trademarks, trade and market related to the relevant areas of false problems, and they focus on the protection of property rights, the economic benefits and economic order, and the lack of moral rights, adequate care of personal rights , do not protect them, not comprehensive enough.

Links to Research Papers Download http://www.hi138.com (b) The existing system of copyright infringement relief the limitations of established

Signed in violation of copyright infringement, copyright infringement remedies in the current legal framework can be applied mainly in China <<Copyright Law "> 46 paragraph 3 and article 47, paragraph 8 provides that" the production, sale of counterfeit signature of another work, "the behavior of the tort. but because of the requirement of" fake signatures of others "against the theft, under the guise of others signed or published without authorization, production, sale of work behavior, regulate itself is ambiguous, and its for the boundary is not very clear. Clearly, the right to the name or names of the legitimate rights as the basic means to evade the law, take the well-known writer, said the name or signature issue and publish, copy, sell works of false violations, can invoke this provision exists for identifying and dealing with controversy. So since this a new tort of false copyright infringement, based on the lack of direct application of the law and specific practices, which undoubtedly is not conducive to pursue the legal responsibility of false violations Naturally, they can not effectively protect the well-known writers of authorship and other legitimate rights and interests. Therefore, in the well-known writers in the domestic book market is a large number of fraudulent use of a signed case, limited by the existing laws for the direct and specific practices based on the vacancy Even well-known writers of receiving complaints and reports of other informants, were found in the market, rights management and copyright sector is difficult based on clear legal provisions, on the false violations in the investigation. Similarly, the vacancies in the law itself, has been infringed The well-known writer the right to appeal the parties that signed the exercise of the right to judicial relief can not be the strong support of the court. from the spirit of existing legislation and related tort provisions of view, the Court invoked <<Civil Code "> the first article emphasizes the" civil activities should respect the ethics and shall not harm the public interest "to false violations were against the principle of public order and good morals, abuse of the right of the name or names of the right to the ground, the verdict shall bear false acts or civil liability for copyright infringement based on the principle of good faith, the verdict shall bear false behavior Civil Liability for breach of fiduciary duty copyrights, both bear the risk of judge-made law. Shows the effectiveness of the special law under the legal framework of copyright infringement remedies, or have the effect of the general law of tort remedies within the legal system, written works are difficult to find a solution to the direct infringement of bogus legal provisions and effective system of programs. Based on this, improve the existing system of legal remedies of copyright infringement, false to include the literary works of infringement of copyright infringement and other new forms into the system of copyright infringement within the framework of legal remedies, it is very necessary.


(C) of the complete written works of the law tort remedies false Legislative Strategy

1, the text works false infringement Regulation Game fundamental analysis. The legal reality of the provisions of the perpetrator Regulation perfect degree determines the regulation of actual results. But to increase their degree of perfection and must be regulated process and the regulator and be regulated by the conduct a comprehensive and detailed analysis, the only way, regulatory provisions it may be regulated by the formation of meaningful restraints. Therefore, the complete written works of bogus tort regulation problem is essentially the false violations occurred during the counterfeiters were counterfeiters and those who regulate the game three of the main understanding of the relationship between the issues. From the perspective of game theory, the game is multi-game, and is a multiple game. First of all, by counterfeiters and copycats exist between the first tier game . In the rational expectations assumption, to be counterfeiters to protect their own interests within the scope permitted by law according to their own experience, writing style, writing skills, to work as individual characters, character, thereby increasing the counterfeiters implementation of bogus violations of the time and economic cost, which is actually an auxiliary regulatory behavior. Secondly, the regulator and the fake The second game between the relations. regulator features from the fact that counterfeiters infringement, tries to find out who is fake and counterfeit works of those who signed the text words behavior of Yang Zhixiang paper the nature of the work between false infringement, and this difference in the form of legislation must be institutional, and gradually improve the written works of bogus violations and legal help. phishing are blurred as the difference is often a legitimate means of registration or change the name to make counterfeiting more invisible and legitimacy, the aim is to make the counterfeiters can not be fake its legal complaint, so that their violations were excluded from the regulator outside the scope of the regulation. we know from the knowledge of game theory, game equilibrium outcome depends both on the final game of the type of game (that game structure), but also depends on the parties involved in the payoff matrix (cost-benefit. In order to make the final balanced result include counterfeiters gains at least and the counterfeiting of those gains the largest (and thus regulated by Regulation of Maximum Earnings), so from the game of the two sub-game run, as the regulator should baryon in the first game was expanded through legislation in the form of counterfeiters and fake acts of those who signed written works essential differences and baryons in the second game of bogus violations for counterfeiters to justice. Only in this way, only may be cut off from the source text counterfeiters work on ways to realize violations. Based on this, later in written works of bogus infringement of legal remedies legislative measures are intended to be launched by this idea.


2, establish and perfect the copyright registration system. China and the world of copyright protection in most countries are used on the doctrine or the automatic creation of protectionism, which works from the Creation of the date of completion of the work entitled to copyright law, and automatically access to legal protection of copyright of the work. But writing is not perfect doctrine, in contrast, the protection of copyright registration system, especially the protection of the rights and well-known writer of special works of authorship of copyright has its unique role. of Copyright registration system began in the first year of implementing <<Computer Software Copyright Registration Measures> "(revised in 2002 under the Computer software copyright registration system, 1994 years at the National Copyright Administration issued <<works voluntary registration pilot scheme," in which Article 2 provides that "works to implement a voluntary registration. works whether or not registered, author or other copyright holders to obtain the copyright law is not affected." State Copyright Bureau in the "" On the release <voluntary registration of works of the Trial Measures "notice>" (hereinafter referred to as << Notice>>), noted that "for the maintenance of the author and other legitimate interests of copyright holders to more effectively address the causes of the copyright ownership of copyright disputes, and provide preliminary evidence to resolve copyright disputes, decided to try a voluntary registration system works." However, <<works voluntary registration pilot scheme>> is still only a pilot scheme, but a departmental regulations, the law does not rank high maneuverability is not strong, not to mention its scope only includes the registration of copyright works on the specific authorship of particularly well-known writer of registration and protection of authorship is not fully taken into account. Therefore, I believe, in the maintenance of the existing copyright protection automatically on creation of doctrine or the premise of protectionism, should learn from Japan and the U.S. copyright legislation, improvement of existing Some copyright registration system, particularly the establishment of a signed registration system.


Signed on the registration, such as the 1989 revision of Japan "Copyright Law"> train the registration of a copyright, Article 75 of the Act provides for real name registration, namely, "a pseudonym or the Department of copyrighted material released in the form signed by the author, regardless of whether it is now also enjoy the copyright, copyrighted material can be carried out on its real name registration ";" real name registration, that is presumed to be copyrighted material with the registration of the author. "[2] Another example is the September 30, 1987 revision The American "<Copyright Law"> Article 408 to 412 respectively provide the general requirements of copyright registration and copyright registration, copyright registration in general to accept that they meet the formal requirements, but "whether copyright protection is not to the Registration for the conditions "; copyright ownership of copyright registration requirements, so registration is of infringement litigation and to obtain remedies for violations of certain prerequisite conditions. but" subject to review to determine if the Copyright Office, under the Act provides material deposited constitute the object of copyright, and conform to the provisions of other legal requirements and a formal request, Copyright Bureau, copyright registration shall apply to applications for registration were issued by the Copyright Office seal stamped with the registration prove. "[2] U.S. copyright law for registration of copyright to include the signature of the registration. Signed a preliminary proof of the effectiveness of the registration system will not only help demonstrate the relationship between authors and works, and can reduce or even eliminate the impostor phenomenon. Because of a signed registration and creation date of the registration of the publicity issue, so that the reader through the network for the relatively easy to identify true false. [3] for the well-known writers, through the signature of the registration, although this presumption can not enjoy the famous author's signature on the registration the exclusive right, but that another person can be obtained preliminary evidence of false violations.


3, augment the existing law, signed by the copyright owner to increase the specific accompanying obligations. As mentioned earlier, an important legal significance of signatures required should have the authenticity of the signature works, identifiable and significant features. [4] In view of our the name of tradition and character-specific external characteristics of the decision, there are a lot of objective phenomena of the same name in both the subject and of respect for the legitimate civil and legal right to a name or names under the premise of the right, but also effectively prevent the false violations acts, protect the well-known writers of the signature will not be fraudulent in order to stimulate the enthusiasm of artists and creative full potential, enrich the existing <<Copyright Law, "the relevant provisions of the work to maintain the authenticity of signatures, identifiable, significance and seriousness, it should be signed by the copyright owner to increase the specific accompanying obligations. The contents include: (1 signed, authorship, and the true description of the contents of the listed obligations. China <<Copyright Law "> only requires the right of authorship, but signed and authorship of the content does not make further provisions. I believe that in our <<Copyright Law "> temporarily change the case of inconvenience, it is necessary in the" <Copyright Law "> For implementation details and the authorship of the content to be signed added to the concrete. in particular should be required to work should have the authenticity of the signature, description of the contents of the works must be true, clear, specific and should indicate the location of significant works and is recognized by the reader or the public, not available at the time of identification containing the full name or abbreviation of my name, can also use this cheat, false, misleading or description text. If and other known names of famous writers in particular often use the signature or the same as in the newly created , published works on the attribution of the author or copyright owner must be signed by the author of works on gender, ethnicity, place of birth, place of residence, education level, experience, occupation, work unit, performance and other matters to make the necessary instructions, special circumstances It is also necessary coupled with recent photographs of, to show the difference. (2) works and the introduction of the contents shall not be misleading, especially in the same name have the same name as well as famous writers of the works published cases, in the newly created and published work was signed by the author or copyright owner to make the necessary responsibility of the signature, the real introduction to and explanation, and the scan and that its introduction so that readers may not contain the previously mistaken for the works of famous writers of the same name of the author or the contents of the latest works or implied, nor merely to illustrate the text is not visible. Otherwise, the work on the attribution of the author or copyright holder false promise of tort liability.


Further, signed works of intelligence, whether individuals or units can be signed by convention or in the works on show, singing, reading works that use the real name or pseudonym. Of identity that can be used in my full name or abbreviation name can also use the first few letters my name, pseudonym or any of the symbols. If the same signature, after the first use may prohibit use of the continued use, and can force the other after the signature instead of users, in order to avoid the public confusion. If the author had previously known of the other relative of the same name, the Department may use the real name to be instructed on the name to show the difference. The author signed, shall not use literature, art, science, history of the famous author's name or a pseudonym. If the author under the pen name or anonymously published works, publishers are obliged to the request of copyright protection, unless the contrary of that, or the publisher should be in front of themselves as a third party of representatives. The authors also disclose their identity at any time, and said he used the name of Department of Civil works of the author, this right can be exercised by or on behalf of the heirs.




Notes:
[1] Zhang Bao. Tort Law in China [M]. Beijing: China Social Sciences Publishing House, 1998:247.

[2] Shen Rengan. Copyright practical Daquan [M]. Nanning: Guangxi People's Publishing House, 1996.

[3] Tang Zongshun. Principle of copyright law [M]. Beijing: Intellectual Property Press, 2005:55.

[4] Shen Rengan. Copyright of [M]. Shenzhen Haitian Press, 2001:209. Links to Research Papers Download http://www.hi138.com