Visual Chinese fire.
The cause of the incident is clear to everyone: Some netizens found that the black hole photo of the previous fire was marked on the visual China website as "this figure is for commercial use, please call or consult the customer representative" .
In fact, the data on the websites of scientific research institutions such as the European Southern Observatory and NASA show that they can be distributed freely by clearly indicating the source, and they also said in interviews with Chinese media that they never gave it to Visual China. Authorization .
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Soon, netizens took out the visual Chinese website and marked the national flag, national emblem, the Forbidden City and other pictures as "copyright". They also had the official microblog of the Communist Youth League Central Committee: "Is the copyright of the national flag and national emblem also your company?"
What kind of pictures are protected by copyright and what kind of protection? Is the practice of Visual China protecting copyright or phishing law enforcement? Today, with the growing awareness of copyright in China, this matter deserves very serious discussion.
Copyright, also known as copyright, is an important civil right that is universally valued by all countries in the world, and China is no exception.
The Copyright Law is the main source of copyright law in China. In addition, the Constitution, the General Principles of Civil Law, the Criminal Law, some separate regulations, administrative regulations, the relevant judicial interpretations of the Supreme People's Court, and the relevant international treaties signed by China are also important legal sources of copyright law.
Legally, literary, artistic, and scientific works are the premise and basis for copyright generation, and are the legal facts that make copyright legal relationships happen. Naturally, the works here include pictures.
So, are all the images copyrighted?
Look at the legal provisions first. Article 2 of the Regulations for the Implementation of the Copyright Law stipulates that works are "intellectual achievements in the field of literature, art and science that are original and can be fixed in some tangible form."
It can be seen that "ingenuity" and "fixed in a certain tangible form" are the constituent elements of the works protected by China's copyright law.
Specific to the storm, it is obviously not a watermark of "Visual China". Visual China has the copyright of related photos, and then it can be sold on the website at a price. What's more, China's use of the national flag of the national flag has the special legislative provisions of the "National Flag Law" and the "National Emblem Law."
The uncle’s question on Weibo today is also this: in the “infringement gallery” sent by Visual China, there are not only historical classic photos such as Mao Zedong, Zhou Enlai and Deng Xiaoping’s leaders, but also Qing Dynasty embroidery and photos. – To be honest, these photos are definitely worthy of Visual China's proof that "this copyright is your copyright."
To put it bluntly, Visual China puts its own watermark on pictures belonging to other people's copyrights and obviously not their own copyrights, which is a serious violation of copyright.
In this case, we waited for the explanation of Visual China, and not only closed the website, but also self-examination and self-correction.
Previously, the company explained the picture of the national emblem of the national flag: "The picture was signed by Visual China for the contributor. Visual China as a platform did not strictly implement the main responsibility of the enterprise, and did not perform the duties of strict review." There are weak links in management."
It is indeed quite a "weak management", but it is not limited.
The fundamental logic of this matter lies in: Visual China's images are from contributors. By default, the copyrights of these images are visual China. As long as they are used, they are infringed and can be pursued. But the problem is that the company is The images uploaded by the contributor are not screened, and whether the uploaded ones should actually be judged to have copyright. In the event of an accident, responsibility can be pushed to the contributor, and their contributor violates the copyright of others.
Very beautiful risk evasion logic, right?
As an intangible asset, copyright has commercial value and can generate commercial profits for users, which means that copyright can be produced and operated commercially.
This logic is intended to preserve the exclusive rights of the creator. If there is an infringement, it can be resolved through legal action.
According to the data of Openlaw, the website of the referee documents, there are 2,968 lawsuits related to Visual China in 2018 and 5,676 in 2017. That is to say, in the past two years, there are 8-15 lawsuits in China every day. hit.
Such frequent prosecutions have been squandered by many institutions as "touching porcelain rights . " That is, the image recognition system is used to search for the use of images by various agencies, and once it is found that the copyrighted pictures are used and not paid, a huge claim is filed, or an annual contract is required.
Obviously, this is to treat rights protection as a business. According to industry insiders, copyright litigation has replaced the sale of pictures and has become the core profit model of many picture companies.
Aside from the right to talk about rights, rights must be empty. However, the exercise of rights must be limited to the purpose of pursuing legitimate interests. If the abuse of rights draws benefits, it will overstep the objective purpose of rights and lose its inherent fairness.
In this regard, Shi Shumei Xinyu wrote that the behavior of Visual China is quite similar to the “Patent Troll” (Patent Troll or Patent Pirate) in Western legal doctrine. These institutions are not inventors of patent technology themselves. Instead, they purchase patent ownership or use rights from other institutions and individuals, and then launch a “smart patent litigation” under the banner of “protecting intellectual property rights”.
Visual Chinese event word cloud
In fact, the picture as a business is nothing wrong, we also respect the photographer's creative behavior. The Internet has developed to this day, which was originally a good business that can be achieved through normative environment and ecological construction.
You can also find that people have become more and more accustomed to paying for watching movies, paying for songs, etc. in the past few years, indicating that Chinese people, especially the younger generation, are becoming more and more aware of copyright, and everyone is willing to pay for genuine original content. Because only in this way, more people are willing to produce good content and innovate good products.
Specific to the incident, the core question is: what kind of pictures should be protected and what should not be protected? What kind of use is "normal exemption" and what is "profitable infringement" or "commercial use" still needs to be distinguished.
As mentioned earlier, the island also received a similar "infringement notice." After consulting legal counsel and legal scholars, Uncle Island received a clear answer: these pictures are “fair use”.
The term "fair use" begins with the British case law. As early as 1839, British judges recognized in the judicial practice "the legitimacy of the use of other people's works without permission", that is, allowing the author to use innovative works for the purpose of honesty and credit, without permission or Use the previous work to pay for the reward.
At present, fair use has been recognized by all countries in the world and has become the most extensive and important restriction on copyright owners.
Article 22 of China's "Copyright Law" stipulates twelve situations for reasonable use. For many media, including the island, “(2) to introduce, comment on a work or to explain a problem, to properly quote others’ published works in the work”, and “(3) to report current events The inevitable reproduction or quotation of published works in newspapers, periodicals, radio stations, television stations and other media has fully demonstrated the legitimacy of fair use.
Of course, for original copyright works, we also paid the relevant fees.
However, fair use is also the rule that is most controversial in copyright theory and practice, but difficult to understand. In reality, many individuals and organizations often use copyrighted works unconsciously when using pictures.
Many times, this copyright infringement has "environmental factors." For example, these works usually appear in the most prominent position of search results or free libraries, sometimes without marking or watermarking. In another example, when publishing similar articles, as a platform, most of the time there is no hint in the system that "there may be infringement."
Considering the usage habits and usage environment of the public, the copyright protection issues brought about by these environmental factors obviously need to be promoted in more aspects.
This wave of doubts by netizens is a reflection of the people's copyright literacy. In a general sense, copyright literacy ensures that copyright holders’ rights are respected, rights are protected, and protected works are used to the extent permitted by law and ethics.
It should be pointed out that the subject of copyright literacy, in addition to the users of copyright works, also includes the owner of the copyright works. As a leading company in the domestic library industry, Visual China will not "protect" or "not own" its own works, and on the other hand, "touch porcelain", and let many individuals and institutions I dare not match the picture, I am afraid that I will be "moved." It is not an exaggeration to say that this is a manifestation of the company's copyright literacy, which abuses copyright rights and collides with the public interest.
Some insiders pointed out that "the reason why Visual China has caused public anger is superficially supervised, but it is essentially the rogue business logic that has stunned for the past two years."
The purpose of copyright legislation is to protect the legitimate rights and interests of authors and to promote the wide dissemination of works. It is not enough to theoretically understand copyright law as a personal rights law. It is even more undesirable to emphasize business logic unilaterally in practice.
This is also the emergence of some Internet platform companies, but there is always a place for Achilles. China's population base is huge, and the scale effect is significant. However, it is obvious that the platform enterprises' ability to control quality management and UGC content production may not keep up.
In general, the use of published works by others for personal study, research, or appreciation is a category of "fair use."
Of course, personal use is one of the most difficult issues in the copyright field. It seems to be insignificant, on the verge of copyright protection, but on the fundamental cornerstone of the copyright system, that is, how to maintain a delicate balance between the interests of copyright owners to develop works and the interests of users.
There is no doubt that intellectual property protection, including copyright, cannot be squandered. This “cracking” of visual China should be an opportunity to discuss the boundaries and uses of copyright and to reflect on the business model of such enterprises.
We also noticed the difficulty of dealing with infringement in reality. Take Uncle Island as an example. Each of our original articles is often copied and washed, but the process of obtaining evidence and safeguarding rights is very troublesome. I believe that every creator who has had a similar experience has experienced it. When it is told that there may be a picture infringement, these authors are also very difficult to spend too much effort to define who the original picture is.
This dilemma we hope to be cracked in the future. In fact, blockchain technology, which is now in development, may be a solution.
Uncle Island learned that the Hangzhou Internet Court now uses Alipay's blockchain technology. When the original creator publishes the original content, it is saved in the blockchain, including the time, place, character, ex ante, after the event, etc., and will be “poked” by the blockchain, any change, even if it is rotated Photographs are recorded and fixed and cannot be tampered with to ensure the authenticity and integrity of the electronic evidence .
Tell a real case. After the 80s, I saw the black cat sheriff. Its "Dad" Shanghai Meitu Film Factory found that a media had used the image of the black cat sheriff in an unauthorized manner, and obtained evidence on the infringing article on the blockchain. After the indictment, he took the initiative to propose a private. In other words, this matter has not been resolved before entering the trial.
This "forensics" process may sound a bit abstract, and you can watch a video experience: https://v.qq.com/x/page/k0860irn47u.html
Prior to this, Shanghai Meiying Factory had to initiate rights protection. They had to go to the notary office to notarize the evidence of infringement. The notary fee ranged from 800 to 1,000 yuan per share, and then waited for several days to get the notarial certificate before going to court.
With blockchain technology, this process can take only a few minutes and cost a few dollars.
We all want the copyright environment to get better and better, which requires a lot of joint efforts. The need for supervision requires the improvement of people's copyright awareness. It also requires copyright companies and Internet content platform enterprises to create an environment that is more friendly, more convenient, and less costly.
This kind of environment is a good thing for everyone.
(文/巴山夜雨公子无忌; Source: WeChat public number: Xia Kedao)