A case study of intellectual property by fdjerue7eeu


									A case study of intellectual property
A case study of intellectual property
Introduction of a case:

A disc in the magazine publishing business burn to CD for simplicity, and the
domestic most magazine signed a contract agreed to a publishing these magazines use
their articles, but publishers will give a certain amount of use fee. Given the numerous
and dispersed, a publishers should also delegate to the part of the magazine, took the
payment. The matter known for some of them to a Press for the defendant, to the
courts to require a cessation of infringement and damages.

Two controversial issues

1. Magazine, a magazine of their own rights? Author's right to expression?

2. Whether the change in the form of CD burning? If so, whether the right person to
be re-authorized? If not, a paid magazine, twice used, constitute unjust enrichment?

3. Whether the statutory license applies to the case?

4. A publishing agreement with the magazine and the author is?

3 Analysis

(A) compile or edit

Copyright law has been amended, and the time the case is unknown, so I do not know
for the old law or new law, the new law applies here.

Magazine in the position and the nature of the act must first be clear. Whether the
magazine publisher among neighboring rights? Publishing is a combination of
replication and distribution in general are mostly published in books, but newspapers,
magazines can also be engaged in publishing behavior. "Copyright
Law" section of chapter IV of "Books, Newspapers and
Periodicals" in the title apparently will act as a journal published by the act
in. Magazine legal title should be "magazines" or
"journal publishers", which is adjacent to the right people.

Neighboring Rights is an international performing artists, phonogram producers and
broadcasting organizations the rights of the title, the nature of neighboring rights
enjoy because these subjects in the interpretation of creation, so that the original work
was a new form of . But our understanding of the neighboring rights, the right for the
communicator, with emphasis on the role of publishers will simply replicate the work
of others published issue of Journal of conduct raised to the status of neighboring
rights of people, give them special protection.

Book publishing, publishers are engaged in the publication of acts purely, without the
presence of creative interpretation. But newspapers, magazines in addition to
reproduce and distribute, but also works editing, editing is different from the
compilation of the works are confusing them this is not right. The new copyright law
in the original "Right" to "the right of
assembly", a more scientific term. However, Editing and compilation of
acts or objective reality, can not be confused.

Compilation is a creative act interpretation is to have the work or material and to read
the selection, choice, design, layout and form a compilation of work behavior.
Compilation of works of creative expression in a unique compilation of
people's choice and arrangement of materials, methods, and generally
giving them the original works or materials distributed a new organizational structure
and performance, and thus the compiler on the design of new structures or new forms
of Xiangyou of qualifications. Since the interpretation of creation is compiled, then
compilation copyright relations as having been compiled on the status of copyright
varies. Copyrighted works on the compilation, then there is double compilation
copyright works, that of the original compilation of works of copyright and copyright
works. Copyright protection on works not compiled the assembly works, the compiler,
only in respect of its design and layout of the structure or form enjoy the copyright,
that is, at this time only compilation copyright. Magazine published an article on its
articles clearly protected by copyright, which is similar to the former, so the latter is
not this taken into account.

In the compilation of the occasion, first, the original copyright work, and then with
the approval of consent, generated by the compilation of works of compilation
copyright. In the process, produce a sequence of two copyright, and the latter by the
former constraint - that is to be compiled by the original author's consent,
or else the original author "compilation rights" violations.
Because the compilation copyright is vested in the property, enjoy the return of the
author may himself exercise, also may authorize another person to exercise, without
the permission of others, does not enjoy the right of assembly. However, the magazine
published by the original author's work and editing work is the same time,
non-temporal priority, and because publication of the existence of the contract without
the consent of another has agreed to exercise "editorial."

China's copyright protection principles to achieve automatic, that is created
upon completion of the work as long as the properties have on the production of
copyright, both without registration, and need not released. However, after the
completion of works created without the express, the author enjoys copyright of
others is not a binding effect, only "naked" right. Given that
others can not know, can not be forced to respect your "rights."
In the compilation of occasions, first by the original author's works are
published and then compiled in a compilation published in the magazine of the works
of occasions, the author's work only through the issue of the magazine
published the same time, the magazine compiled their works are enjoy the copyright,
they had no priority, this one. Second, the authors submit the manuscript to the
magazine, the magazine agreed to publish their works, so that in a contract concluded
between the two. The contract includes the magazine of course, the
"Right" - the magazine in some structural arrangements
necessary to publish a piece of work, without the need of additional consent.

Thus, in this case, the original author's copyright of their original works of
righteousness as no doubt, the magazine based on its "Edit" and
also enjoy the status of "compilation" rights. But the need to
mention is that, if the magazine have a right, not as a "compilation of
works" enjoyed by the copyright owner, it enjoys the most, and in editing
the overall form, that is the right format and binding, so less than the original
author's copyright on individual works, is the truth is, of course.

(B) the nature of acts of burning CD-ROM

Magazine publishing contract between the original author, and publication of a work
means to copy and distribute the physical carrier. Copy number of the provisions
should, in principle, should affect the circulation of pay. Journal of different books, of
course, generally do not reprint, but if the second edition, but also to meet the
appropriate remuneration to the author, that one-time payment of
"royalties" approach is the denial of rights. Unless expressly
agreed, refer to the same form of copy should be copied, because it explained the
most to protect the copyright owner. But in the event of multiple interpretations, the
"residual rights" go right to the principle of people meet the
right standard, because the source of the copyright owner's rights, the
rights of publishers flow. Written form and electronic form, both are the same form,
controversial. From the "Copyright Law" Article 9
"the right of reproduction" and "Right of
Communication through Information Network" provided separately, but
will the right of reproduction is defined as "to print, copy, rubbing, video,
etc. flop will produce a work or more than the right "look, without special
agreement in the form of reproduction, when less than in electronic form, and given
this interpretation also more conducive to the protection of the copyright owner. Thus,
even as the publication of the magazine, one of the main contract to burn electronic
version, are required to enter into another contract with the author, not to mention the
third person.

Magazine, it may allow a third party CD burning? The view was expressed that the
electronic version and text version of the same form, so that the recording has been
included in the publication of electronic contracts. This view is wrong with the
following points: first, the publishing contract did not transfer the right of
reproduction, the magazine also has not obtained the right of reproduction, regardless
of whether the electronic version and text version is the same form, recording acts are
copying, the right of reproduction is. Since the magazine is not the author nor the
author's permission, of course, no right to license. Second, the magazine
editor behavior different from the compilation of acts, magazine layout and binding
only to enjoy their right to belong Moreover, even if the compilation, and also only
works as a whole and not in all places and at work, and also are subject to of
constraints. Third, even if the same form of reproduction rights are limited to the
relative parties to the contract, that magazine, and in the incremental replication, the
magazine needs to pay another. Because of the absence of special publishing contract,
should be interpreted as a replication, rather than unlimited copying. If you want a
third copy, to obtain the consent of the copyright owner still necessary conditions. A
CD-ROM publishing the case in his return to the magazine also contains the
author's remuneration, but also realize that this is inappropriate. Therefore,
the nature of acts of burning CD-ROM is not important in this case.

(C) whether the application of the statutory license

Statutory copyright license that means the law of direct provision, in certain ways
have been published using another person's 作品, who may be exploited
without the permission of the copyright Dan shall pay a fee, and Zunchong other
rights of copyright holders system. Statutory license is permission to use copyright
exceptions, which should be limited to the express provisions of law, not to extend to
that, nor any analogy. The revised "Copyright Law" to
strengthen the protection of copyright holders, reduce the scope of the statutory
license, the corresponding expansion of the scope of the general license, is in line with
this principle. According to the revised "Copyright Law"
provides that statutory license is limited Article 32, paragraph 2, Article 39, paragraph
3, article 42, paragraph 2, Article 43, but these provisions were not applicable in the
case room.

Case there is no fair use, compulsory licensing application, and therefore the third
order to burn a CD-ROM will have to obtain permission from the original author.

(D) A publishing contract with the magazine and on whether the effect of

As noted above, the magazine since it is not the author, does not have the right to
authorize others to reproduce, and thus engage with a legal act between publishers are
not entitled to sanctions, according to the effectiveness of contract law is to be
determined, should be considered that of human rights determined whether the
ratification of its effectiveness. If not now of ratification comes as null and void.
Magazine publishing agreement with the effect of it and the author? According to the
contract principle of relativity, the relative effectiveness of the contract only, only
valid between the parties, without and in the third. This contract is null and void all or
part of the magazine without effect, as the availability of its
"disposition" may be. Recognize their right to assembly, such as
copyright, the magazine seems to be that part of their disposition. It should be noted
that as a "derived" rights should be subject to the restrictions of
the original right, the magazine does not have a separate right of action, and therefore
the right people were not the original consent, the disposition is still valid. Of course,
as the author of the article's editors, the magazine does not enjoy even
disposition, and therefore all of its contract should be invalid. Therefore, both for the
magazine or on payment of remuneration, it should be returned.

Even if they are part of the agreement between the effective theory of relativity under
the contract, the contract can not bind third person, that the author, unless the
magazine to get identity of the agent set. Acting sub-statutory agency and the agency
agreement, the magazine can not be agents of the rights or obligations, and because
the authorization of a contract without an agent, so the magazine is not on the agent. A
CD-ROM publishers of the magazine, whether the conduct constitutes the
author's benefit? First, the payment to the premise of a valid contract exists,
the present case the contract is invalid, and therefore far from payment problems.
Secondly, to say the least benefit is the result of the process behavior and acts of unity,
it is to the right person to take delivery as necessary. Neither case magazine, accepted
the payment of an agent, so the order of their payment, not up payment purposes, thus
not as payment. Again, compensation claims department of the rights of the most
important in the market economic conditions, should consult with authors and
publishers may be, can not unilaterally designated by the Press. Therefore, without
consultation       with    the author, but          by their       own standards of
"royalties" send, is tantamount to depriving the
author's compensation claim. The result may be the result of consultations
may be the same, but the procedure that it deprived the author's bargaining

(E) Conclusion

In summary, as a magazine publisher, and do not enjoy copyright works, and therefore,
does not have powers, with a set by publishers or authors for failing to ratify the
contract invalid, it is a publishing company for the payment of remuneration and
certainly not students payment effect.

Four Thoughts

A case in publishing said at least no harm from a moral, it has by its own criteria
(generally a standard publishing industry may be) to pay a considerable cost and the
part of the costs also have included that part should be given on . And a lot of it is
extremely dispersed, and the actual per person should be a "contribution
fee" may be small, let 11 do not really benefit the economy, it is the
behavior of a Press forgiven. But its behavior is not lawfully have is clear, have
already been given details. A reasonable but not illegal behavior, indicating the
construction or implementation of the system must be flawed. Thus the establishment
of an independent body dedicated to replace the present case, the
magazine's role, there is a lot of benefits. First of all the bodies are not
government bodies, but on behalf of the copyright owner's self-discipline,
self-government institutions, it allows the copyright owner's rights
organizations have their own maintenance. Second, it also eliminates a case such as
the embarrassment of publishing, which is also conducive to the counterpart, is
conducive to the establishment of intellectual property rights market order.

For publishers with a magazine article, of course, deal with the money, but why
should lay hold on the magazine? If this distinction between editing and compilation
of the establishment, then the magazine is not a compilation of works on the copyright
owner, and bought a publishing works of the author and not the magazine's
layout and binding, from this perspective that the magazine does not should receive
any remuneration. However, if the license allows any of their works on multiple
occasions and received more than pay, and was first published during the publication
of the work unit is not only penniless, but also face more severe competition situation,
its a bit too negative. Thus how to reconcile the two interests, relations greatly.
Methods for the provision of a publishing unit of the exclusive, all favor the publisher.
Method 2 In contrast, all biased in favor of the copyright owner. Methods Folding in a
agreement on the distribution of benefits from the agreement, no agreement, the basis
of an apportionment between the two. From the perspective of the interests in the
equity between the two reached a win-win. It should be noted that, even so, the
benefit is not a publisher because the identity of the copyright owner, but as a
publisher based, and the copyright owner contract, reached through the contract. In
fact, the publisher than the copyright owner, the general is strong, it is generally the
contract will take full account of their interests. Thus, the legislation adopted the
second approach is feasible and consistent with the law.

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