Comparison Of Network Copyright Protection Between China And America

The network copyright is the expansion of traditional copyright in the digital dissemination domain , which is more complex than the traditional one. The subject,object and content of its legal relation all have the particularity. The protection of network copyright has developed gradually to comply with this challenge both in China and in America. Being members of Berne Convention and restricted by TRIPS, China and America have the obligation to supervise and protect each other. However, different legal tradition, research history, technology level and status in the copyright economy lead to the difference in the network copyright protection. First although both countries integrate information network transmission right, network works, technology measure and electronic rights management information into network copyright protection, the distinguishes still exist as follows: different legal form of information network transmission right, different degree of database and software protection, different category outside of protection, different definition of originality, and different standard of technology measure and electronic rights management information. Second, although both countries have instituted the system of copyright restrictions on fair use and statutory license, there exists difference in their method and scope. Third, although both countries are confronted with similar questions in aspect of infringement, there is difference in type of tort liability reflected in the use of indirect responsibility, and there is difference in the criterion of subjective wrong. Fourth, although both countries have established the remedial system of infringement, there exists difference in the way of remedies, judicial system, computation of indemnity, criminal legislation and component element of crime. In addition, there still exists difference in the problem of temporary duplication and so on. According to national conditions, China should use the experience of America for reference. For example, China should pay attention to enhance the protection of database and software; to perfect the regulations of technology measure and electronic rights management information; to define originality more clearly; to amplify necessary rules of indirect responsibility, doctrine of liability fixation and judgement of subjective wrong; to amend regulations of statutory license; to strengthen judicial remedy; to define computation of indemnity; to amplify criminal legislation; to reconsider component element of crime and amount of criminal fine; and to put temporary duplication into the provisions of copyright law under the condition of regulating limitations and exceptions. It will contribute to enhance the level of network copyright protection. Meanwhile, it is feasible in China, because a good policy environment has been provided for it with the issuance of China's Action Plan on IPR Protection 2006 and Notice of the General Office of the State Council on Circulating the Outline of IPR Protection Actions (2006-2007).