On The Restriction Of The Right To Claim For Stop The Infringement Of Copyright

In copyright infringement cases, the vast majority of the obligees will put forward the request of stopping the infringement litigation,and as long as the final will nature of the behavior of the defendant for the infringement, the court may order the infringer to stop the infringement. However, with the development of society and technology, the application of this infringement trial mode to stop problems, may lead to a significant imbalance in the interests of the parties. In the academic circles,the injunction limiting has arouses a heated discussion,and the judicial practice of our country takes the lead in breaking through the cessation of infringement of course mode of application, the decoration company in Shenzhen Great Wall Furniture Co., Ltd. Shenzhen AoYa Industry Co., Ltd. v. infringement issue in a case is to break through the typical case of this model. The court was mainly cited basic principles of balance of interests of intellectual property rights, did not support the right of obligee to require the defendant to stop infringement lawsuit on the grounds of public interest. Due to the current has not yet been introduced to copyright to stop the infringement civil liability limit applicable normative documents, this article attempts to to limit applies to stop the infringement right to request the right criteria and works without stopping the infringement of the alternative measures of relief.This paper is divided into five parts.The first part tries to introduce the the basic facts of the case decoration company in Shenzhen Great Wall Furniture Co., Ltd. Shenzhen AoYa Industry Co., Ltd. v. and to expound the process of the court that quoting the public interest of copyright stop limit argument against the liability. The Great Wall Furniture decoration company bought the wallpaper "Yun Jin Xia Shang" without permission and used it in Building Decoration Engineering, the court finded that such act were a violation of the plaintiff's copyright, however, the court did not support the claimof the plaintiff which asked the defendant to immediately stop the infringement. The court in the public interest grounds, due to involved in real estate has begun to sell them to the public, to order the defendant to stop infringement will affect the majority of small owners interests, resulting in a waste of social resources, and court in the amount of the court to order the defendant to the plaintiff compensation for economic losses, have been taken into account in should the plaintiff to obtain the effective compensation and relief, in can make up for the loss of the interests of the plaintiff, the plaintiff requested the defendant to stop infringement of the petition, the court not to support it. This different judgments in the academic circles is "judge flexible use of balancing of interests in intellectual property principles wisdom case" or "judge made law in order to achieve fairness and justice", take the lead in this paper to investigate the problem, whether it should be to stop the infringement claim restrictions, and in what circumstances to restrict the.The second part introduces the present situation of China's copyright cessation of infringement, the author respectively from academia, the current situation of legislation and judicial practice are expounded.First, the academic circles said that copyright is a kind of quasi property, exclusive, so the claim of real right system, human rights violations certainly enjoy injunction in copyright. But after the 1990 s "Wu Song killing the tiger" case, the case strictly in accordance with the law, but indeed cause the imbalance of interests between the plaintiff and the defendant, the academic circles began to reflect, to stop the infringement claim restrictions. Second, in the aspect of legislation, China's "general principles of civil law" does not require stopping the infringement is applicable legal liability must be, "copyright law" is "should according to" to be determined how to take responsibility and accountability; in China's "Regulations for the protection of computer software" is directly stipulated when the software copy holder subjective no fault, and stop use and destruction of infringing copies will be to cause significant losses, to pay a reasonable fee for the alternative forms of stop violations. Although the law, but the principle is the same. Third, judicial practice, the court in consciousness to absolute applicable to stop the infringement claims non optimal solutions, bold breakthrough, originally in the field of patent of a breakthrough, Supreme People's court by the on the current economic situation in intellectual property adjudication service provided the overall problems of opinions "disguised confirmed the rationality of the decision. The author makes a comparative analysis in this part of a case "and" Wu Song "tiger" case, crystal source case.The third part is a stady in the Perspective of Comparative Law investigation of the system and the judicial precedents of the United States and Japan. Permanent injunction in the US is same to our cessation of the infringement liability. The attitude of US to injunctive relief is an iterative process, at the beginning of establishment, they approvede of balance of interests, however, then it subvert the previous point of view, it considers as long as the infringement is established and the court will have to release the ban, there is little not to release the situation, until the emergence of the case eBay, the court change to pay attention to the balance of the interests again. Japan's poor check system of right of claim exists for a long time, generally, in the copyright cases, If the plaintiff proposed differential check claims courts tend to be sure of the plaintiff's claim, the court did not support the poor check request right is often that the damage the defendant have no to the possibility of infringing. Terefore,checking the claims of the plaintiff has no protection necessary and denied the plaintiff's claim. However, there are some cases, in judging the establishment of copyright infringement and do not support the exercise of the right to request difference check, just to support the claim for damages.The fourth part is a review of the case AoYa. The author combines the legal status of the liability to stop infringement, and compares with the system and jurisprudence of United States and Japan, that the sentenceof Ao Ya case is flexible that the judges use their wisdom handles the principle of balance of interests in the intellectual property, avoiding the waste of social resources, also being same with the development trend of world intellectual property. At the same time, the auther also points out some shortcomings over the judgment, that was the reasoning process of how to determine the amount of alternative economic compensation was defective.The fifth part mainly discusses judicial suggestions of copyright restrictions to the cessationof infringement claims,in other words,it's how to deal with cases that are similar to AoYa case. The author suggests to measure whether restrictions are applicable should weigh the interests between the parties first, including between individual interests and public interests. Such as if the decision to Cessation of infringement will cause damage to the public interest, it should be limited of the cessaion of infringement, also if The decision will cause imbalance between personal interests, the cessaion of infringement should be limited too.Then the author discusses the amount of compensation if the infringement of copyright does not stop, The court should first highlight the importance of mediation, then as the parties are unable to reach agreement on the amount of compensation, the court decides the amount of compensation in it's discretion.