In the past few days, I encountered such a case. The map I found on a website for 15 years is used for publishing articles on the website and disseminating knowledge. As a result, I received a phone call about infringement in 19 years. First, I would like to talk about my questions about this infringement, as follows:
1. How to prove that the copyright of this picture belongs to them (the picture company)?
Because the infringer is a composite picture, can the picture company provide the author who took or produced the picture? Prove how they made it? I saw this is not a real picture (Because the picture is still in infringement status, it is not convenient to place it on the network, please understand) , Are the pictures produced by genuine software? Is there any proof that it is legally made? For example, whether it is made by adobe licensed software, and whether the auxiliary elements used are licensed or licensed（ Special note: There are many composite materials for composite pictures, which are also downloaded by designers from other material websites, and there may also be copyright issues ）Please provide evidence. The lawyer who called said that they bought the pictures from another company. Did they sell the company's authorization, contract, etc.? In addition, did they have the author's letter of authorization? If they bought out the copyright of the company's pictures, did they have the relevant equity transfer or related procedures with the company, This needs to be proved. It doesn't mean that we get an individual authorization, but the copyright is his. The copyright of him started in March, 19. The initial date of our use was 2015. At that time, there was no copyright. He was a copyright registered in 19 years. They didn't tell us that they had just bought out this right. The photo company should have the obligation to tell us. We should not take advantage of the loopholes of the Internet law. We should first make it public for free and then collect copyright fees, This is speculation.
We respect intellectual property rights
2. Is the copyright of the picture exclusive? Is it the only authorization?
The price of the pictures must be different. Now it is said that the customer's infringing pictures are designed in combination rather than shot, and whether the elements of the combination are genuine materials or used directly, which needs to be discussed. The prices are also different. The current market price is 500-800 yuan/piece (There may also be high prices. The 15 year old pictures are not much higher, and they are similar to the ancient Korean materials. Designers should be able to think of them.) They charge 5000 yuan each, which should not be in line with the market price. The customer used it when writing original articles in 14-15 years, mainly to provide free content learning reference for online learners. It has no commercial value. The pictures are just for embellishment and have not created any profits. It is only for public benefit learning. In addition, the company was founded in 13 years, and in 14-15 years, these materials were free and publicly used online, There is no charge label, no clear price tag. They now say that they will start charging, and it is their own. Please provide the above evidence to prove that, in addition, this kind of behavior starts to sue for infringement without any prompt or notice, and charges high fees. This behavior is very shameful, similar to the SJZG that has made a lot of noise recently (I dare not give my name for fear of infringement. It's very noisy anyway. Everyone should have heard of it.) event.
3. Has the limitation of action expired? All claims of the plaintiff shall be rejected.
According to Article 28 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Civil Copyright Dispute Cases, "The limitation of action for copyright infringement is two years, counting from the date when the copyright owner knows or should know about the infringement." The plaintiff said that the infringement itself is open. The article published in 2015 is now 2019, It should have exceeded the limitation of action, right? The plaintiff's claim shall be rejected. The plaintiff's so-called rights protection behavior may be suspected of violating the principle of good faith, which belongs to the behavior of abusing power and harming social and public interests, and its claim should not be supported. In practice, the plaintiff may use its own website or search engine as a platform to contact with the other party in the future litigation, allowing the public to download the pictures involved in the case for free without taking any explicit copyright method to protect copyright, such as whether there is a clear code price on the website of the material pictures, and whether there is a watermark mark on the obvious position, Some photo material websites do not take any security measures to prevent copyright infringement in advance. After being used by the public, the plaintiff or its affiliated company will file a claim against the discovered object. If the negotiation fails, the plaintiff will file a copyright infringement lawsuit to seek extra value benefits through litigation. Filing a copyright lawsuit forced the other party to pay compensation far higher than the price of the picture under the pressure of the lawsuit, so that the plaintiff could achieve the purpose of obtaining super value benefits. According to the market survey, the market value of the pictures involved at present is 500-1000 yuan. The price varies according to the resolution of the pictures, that is, the clarity and size, and the cost. However, the plaintiff's claim is 5000 yuan per piece. Even if the cost of rights protection (retaining attorney fees and notarial fees) is included, the plaintiff's benefit from rights protection is far higher than that from normal commercial transactions, It is prone to moral hazard. The Plaintiff's aforesaid behavior is likely to create a bad association: that is, the Plaintiff may not be mainly engaged in the normal sales of pictures, and may not really be worried about the infringement or damage of copyright. The core of its business may be to obtain higher interests through litigation.
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Benefiting from the concept of big data, the number and specific circumstances of similar plaintiff litigation cases are no longer trade secrets. We should be able to query the approval documents of similar cases through the data disclosed by the people's court, and believe that the judge can make a reasonable prediction on the trend of the case and the court's approval opinions on similar issues, thus guiding us to make a reasonable response, Prevent losses caused by malicious rights protection. It should be noted that the plaintiffs never set up obvious measures to prevent infringement on their websites, or even the most basic measures such as price increase and watermark. They indulged or might have induced the occurrence of infringement, and then proposed compensation that was far higher than the normal commercial price, making use of asymmetric information and maliciously obtaining high profits. It is reasonable to respect intellectual property rights, and it is worth advocating to safeguard legitimate rights and interests through litigation. However, the plaintiff and respondent in this case intentionally did not take preventive measures in advance to make profits in litigation. Such acts are abuse of power and violation of the principle of integrity, and such acts should also be curbed.
4. In addition to providing the copyright registration certificate and power of attorney, the plaintiff should also provide the creation manuscript
The original manuscript shall be provided, such as: hand drawn graphics, icons, lines, 3D modeling, layered graphics, etc., and other creation certificates, or the certification documents for the assignment of copyright, such as: the letter of assignment for job creation, the agreement on ownership in the commission and cooperation creation contracts, and the corresponding creation evidence. It is not enough to have a PSD layered map alone. Because of the hashed design elements, any designer who knows Photoshop can also combine and design them. Original manuscript must be provided, because the composite map is not a photographic work, and it should have a manuscript as evidence for creation. The plaintiff is currently a photo agency. In addition to providing creative evidence and other evidence materials, it is also required to provide a statement that the original obligee has obtained the right to protect its rights and the relevant original obligee has waived the right to protect its rights. The ownership certificate shall include: picture watermark, time stamp, transfer certificate (job creation appointment, cooperative creation contract, commissioned creation contract, other ownership contracts), picture manuscript, registration certificate. In addition, the registration date recorded in the copyright registration certificate is later than the date of the "infringement" act involved in the case. The plaintiff shall also provide the aforementioned supporting evidence to prove that it has a legitimate source of ownership, Again, it is emphasized that the pictures currently used by customers are only used for website content users to query and learn, without generating commercial value or profits, nor having a negative impact on the plaintiff. The plaintiff said that several "infringement" pictures were in the encyclopedia column of the website. The meaning of the encyclopedia is to let online visitors browse for free. The website has not paid for browsing or clearly marked prices through such articles or pictures. For commercial subjects for non-commercial purposes and the general public, it is really scary under the threat of high compensation, In order to avoid endless complaints, if we give up the use of online pictures, it will hinder the effective dissemination of culture. Network picture infringement cases involve complex elements of judgment, not stylized operations. The judgment of infringement is not simple right or wrong, and the amount of compensation is not simple high or low. Only through the correct and just judgment guidance of the judge can the obligee and the public get their own way, make rational use of scientific and cultural achievements, and achieve the purpose of copyright law of cultural prosperity.
