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Enterprises should formulate effective strategies to prepare for foreign-related copyright disputes

not long ago, the international record company v. Baidu infringement case, which was once noisy, was finally settled. The final judgment of the Beijing Higher People's court rejected the claims of five record companies and ruled that Baidu did not infringe and would not bear any compensation

with China's accession to the two major conventions in the field of copyright - the Berne Convention and the world copyright convention, and the expansion of foreign cultural exchanges, China's foreign copyright trade is booming. However, with the frequent exchanges, China's foreign-related copyright disputes have also entered a high incidence period. Many domestic enterprises often cannot correctly deal with foreign-related copyright disputes. In the face of the big stick of foreign giants, they are helpless or have a fluke mentality, resulting in enterprises being passively beaten

the author believes that domestic enterprises should not be afraid of the high incidence of foreign-related copyright disputes. First of all, we should abide by the rules of the game and try to avoid foreign-related copyright disputes; Once a dispute occurs, we should first analyze its characteristics, explore its causes, and then formulate corresponding countermeasures, and correctly use legal weapons to protect ourselves

foreign related copyright disputes mainly fall into the following two categories: one is that Chinese users are sued for infringement by foreign copyright owners, and the other is that Chinese copyright owners Sue foreign users for infringement. They are all related to each other. Among them, there are two ways for foreign copyright owners to sue Chinese users for infringement. One is to accuse Chinese users of infringement to Chinese courts or administrative organs, or warn Chinese users to stop infringement activities and compensate for losses, otherwise they will file infringement lawsuits against users; The second is that the alleged infringement activities of Chinese users occur abroad, or the copies of alleged infringement are sold abroad, and foreign copyright owners file infringement lawsuits against Chinese users in foreign courts

the author believes that in the face of foreign-related copyright disputes, no matter what kind of accusation it is, domestic enterprises should first understand the following facts

first of all, as for the foreign plaintiff accusing the domestic enterprise of infringement, the domestic enterprise should know whether the other party has the copyright of the part used, that is, whether the other party has the right to sue for its own infringement. In terms of copyright, most countries stipulate that only the author of the original work or its authorized exclusive licensee has the right to sue others for infringement alone. Secondly, even if the foreign plaintiff is an exclusive licensee, whether the contract period for which the "exclusive license" is granted has expired. Thirdly, the copyright of some works is shared by more than two copyright owners, and all the co copyright owners must together, or jointly authorize one of them to represent all, so that the production of spring testing machines in China can sue. In addition, both the Berne Convention and China's copyright law set the copyright protection period as 50 years after the author's lifetime. If the other party sues domestic enterprises for violating their spiritual rights that exceed the protection period of economic rights, they may be liable for infringement. Finally, if the domestic enterprise does infringe, but can provide evidence to prove that the foreign plaintiff has known or should have known the relevant infringement activities for more than the limitation of action, the plaintiff has no right to claim any civil relief for the specific infringement activities of the domestic enterprise

in fact, the copyrighted part of a work is often mixed with the non copyrighted part. If only the officially released statistical data, documents, decrees and the like are used, without involving any unofficial documents of the work, it does not constitute infringement; If the part used by domestic enterprises is not created by the author, but introduced by the author from others, and the person has died for more than 50 years, there is no infringement problem; If the fair use permitted by copyright law or Berne Convention is quoted, there is no infringement problem. When it is unavoidable to be confirmed as infringement, try to find some evidence of infringement out of ignorance, and the court may reduce the compensation of domestic enterprises during the trial

the author believes that domestic enterprises should fully prepare relevant evidence in the litigation of foreign-related copyright cases. For evidence from abroad, it must be notarized abroad and authenticated by Chinese embassies and consulates abroad, or perform the certification procedures stipulated in the relevant treaties concluded between China and the host country, otherwise, these evidence will not be accepted by the court. In addition, we should also bring a lawsuit to a court with jurisdiction, but we should pay attention to the provisions of the time limit in the lawsuit

a very important point is that when domestic enterprises negotiate copyright trade with foreign parties, it is very important to formulate a careful and comprehensive contract, which is an important basis for solving copyright trade disputes and also an important evidence of foreign-related copyright dispute litigation

when domestic enterprises transfer or license copyright with overseas individuals or companies, they should first clarify the obligee of copyright and ensure that the rights they get are legal and effective. In the first authorization, the authorizer or transferor should be required to produce the certificate of the original obligee. In the second authorization, in addition to the certificate of the original obligee, the licensee should also be required to produce its certificate of legal authorization and re authorization. Secondly, in foreign-related copyright trade, all parties should conclude a written agreement and agree on copyright matters in detail. Thirdly, in terms of copyright transfer contracts and exclusive license contracts, the parties can also register with the copyright registration administration department. If there is a copyright dispute in the future, these registrations can be used to help prove that they have been legally authorized

the author believes that once there is a foreign-related copyright dispute, whether as a plaintiff or a defendant, the company or individual involved in the dispute should not rush to sue or respond to the lawsuit, but should accurately and carefully analyze the nature of the dispute, pay attention to analyze the other party's claims, determine their own coping strategies, and consult professional lawyers in time. If it is found that the other party's rights have been violated, ouyangming should not sit down and say that he is ready to die, but should actively negotiate with the other party to solve it. In addition, some foreign companies use cases to hype, so as to expand their influence. Domestic enterprises should also have the awareness of right protection and lose no time to put forward counter claims and other countermeasures

in short, domestic enterprises must actively deal with foreign-related copyright disputes, be friends with each other, be mentally prepared, and overcome blind fear and fluke. The litigation of foreign-related copyright disputes is a marathon long-term war. We should find opportunities in the long-term war, protect ourselves rationally, profitably and frugally, and fight a beautiful tough battle. (intellectual property report Runsheng) (end)

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