著作权中剽窃行为的界定(英文)

时间:2018-10-11 作者:博学论文网
  Abstract:The birth of any works not only has the innovations of personal labor, but also cites others' previous results. On the one hand, the absorption of the results from others is a heritage of good culture, and on the other hand, it infringes the copyright of others to some extent. The main form of this infringement is plagiarism. Although plagiarism has been prohibited in the current legal system, the understanding and interpretation of plagiarism is not clear, and the identification of plagiarism from theory is still relatively vague. The purpose of this paper is to discuss the way of defining the concept of plagiarism, the identification of plagiarism factors and the improvement of anti-plagiarism legal system.
  
  Keyword:plagiarism; interest; legal system;
  
  Plagiarism has often occurred since human works were created. This has led to the loss of traditional academics, the solidification of national thinking, innovative thinking seems to become a challenge. So, what effective measures should be taken to curb this undesirable trend? Firstly, the concept of plagiarism should be defined scientifically, the elements of plagiarism should be identified theoretically and systematically, and plagiarism should be distinguished from other similar acts. Secondly, we should strengthen punishment for plagiarism and intensify the disposition of plagiarism. Finally, we should strengthen academic moral education and resist plagiarism. To achieve the above goals, we need the compulsory measures of laws and regulations to protect, so it is imperative to build a perfect anti-plagiarism legal system.
  
  1 the concept of plagiarism.
  
  Plagiarism not only damages the interests of individuals, but also hinders the development of social culture. The definition of plagiarism needs to be comprehensively defined from two angles: Theory and interest.
  
  1.1 concept requirements of copyright law
  
  The idea protected by copyright law is the author's interest and the public's interest. Based on the different objective conditions of the two ideas, the restrictions on plagiarism should be understood separately.
  
  1.1.1 author interests
  
  The author's interests are contained in the works he creates. When he creates his works, he will inevitably be inspired and guided by predecessors'thoughts and complete a work. The contents of the works which involve predecessors' research results may reach 50%~60%. Some works even reach more than 90% are based on other people's research results. However, the content really belongs to the author himself, but only a small proportion. This kind of “utilization” of predecessors'labor achievements should have a reasonable and clear legal scope. When creating works, it is necessary to “utilize” others' labor achievements reasonably within the legal scope, so as not to infringe upon the interests enjoyed by predecessors as authors. Plagiarism is clearly not within the scope of the statute, so plagiarism is an infringement of the interests of predecessors, and the so-called author of the work naturally has no interests to speak of.
  
  1.1.2 social interests
  
  The birth of a piece of work is entirely independent of its predecessor's creative achievements. Any works must be historic and social. After the work is completed, the private economic interests of the work will be transferred to the public domain without compensation. The interests of the work will be contacted and enjoyed by the public in a free environment to meet the needs of the public. This requires the public to respect the realization of the author's social value in the use of works. If the public plagiarizes the contents and ideas of previous works in the creation of works, it will lead to two or more identical ideas and contents in the same field, resulting in adverse social impact and bring about future research in this field. Confusion can not clearly analyze the true meaning of the thought and content.
  
  1.2 definition of plagiarism concept
  
  In the Contemporary Chinese Dictionary, the definition of plagiarism is also relatively clear, that is, plagiarism, theft (other people's works, achievements, etc.) [1]. There are also corresponding provisions for plagiarism in China's law. Article 118 of the General Principles of Civil Law states that “plagiarism” infringes other people's intellectual property rights, and the object of plagiarism can be works, inventions and other intellectual property rights. The forty-sixth article of the copyright law states that “piracy” only infringes on the copyright of others. There is no uniform standard in academia, which simply refers to plagiarism as the act of possessing others'works, academic opinions or ideas. Through the analysis of the author's interests and social interests and the origin and present understanding of plagiarism in our country, this paper defines the concept of plagiarism as follows: in the process of creating works, copying and quoting other people's works, but in the creation of works are not marked, marking, resulting in the creation of works mixed with other people's works. Behavior.
  
  2 Comparison of plagiarism and other related definitions
  
  2.1 plagiarism and plagiarism
  
  The definition of plagiarism and plagiarism currently has two main points in the theoretical circle. One view is that “plagiarism” is neither synonymous with “plagiarism” nor included in “plagiarism”. The relationship between plagiarism and plagiarism is synonymous. In this view, the main difference between the two is that the plagiarist should indicate the name of the work; the origin of the work, indicating the name or name of the author; and the plagiarist does not indicate the name of the work, the origin of the work, nor the name or name of the author. In another view, “plagiarism” refers to copying all or part of another person's work and transferring it intact to one's own work. It is not a “mental labor” but a “manual labor”; and “plagiarism” involves “mental labor” to a certain extent, which requires a re-creation process, that is, transferring it to one's own work. People's ideas and viewpoints are collected, analyzed, and then copied into the works, which become their theoretical basis. The definition of “plagiarism” and “plagiarism” has also been analyzed in China's legislation. For example, in the Copyright Law of 1990, plagiarism and plagiarism were included in the list of copyright infringements. In the theoretical circle, “plagiarism” does not include “plagiarism”, nor is it equivalent to “plagiarism”. They only mean the same thing. “Plagiarism” and “plagiarism” are generally interpreted in Chinese dictionaries in the same way, but “plagiarism” is more precise and precise in terms. Plagiarism is a way of plagiarism, which involves the relationship between inclusion and inclusion, and cannot separate them. Plagiarism and plagiarism, both from the perspective of semantic interpretation and from the legal level, essentially take the intellectual achievements of others as their own. Without accurate identification and regulation, it will undoubtedly simplify the problem. In addition, the core meaning of the word “plagiarism” is “plagiarism”, and the key point of “plagiarism” is “theft”, “plagiarism” means the act of copying another person's work. “Stealing” is the act of stealing other people's intangible intellectual achievements. As an expression of a legal concept, “plagiarism” may be more applicable to infringement cases that are common nowadays.
  
  2.2 plagiarism and fair use
  
  Rational use refers to the use of other people's works justly and in good faith, without infringing on the interests of others or the interests of society, and to quote other people's works within the limits prescribed by law, indicating the source of the work and the name of the author. Rational use should meet the following requirements: (1) The quoter is not intended to copy, re-create other people's works, but a reasonable reference, use. German Copyright Law refers to the use of other people's research results for the purpose of creating their own works, conforming to the scope of copyright protection, providing support for their own views or discrepancies with other people's views and aesthetic claims, i.e. [3]. That is, the subjective intention of the actor determines the rationality of its use. The malicious use of others' works to make profits is beyond the limit of fair use. That is to say, the actor must have legitimacy to use the work, the subjective purpose is good faith, otherwise constitutes plagiarism. (2) when using others' works, we should specify the name of the original author and respect the identity and interests of the original author. Only in this way can readers understand that this part of the quotation is not the result of my own creation. If the source of the quotation is not marked, the reader will misunderstand, and then consider it as his original, thus constituting plagiarism. (3) the total usage must be reasonable and appropriate. This requires a grasp of the “quantity”, although it can not accurately quantify the quoted standard of proportion, but there are still countries through legislation to limit. As the Copyright Act of the United States points out, the proportion of quotable content in one's work should be less than 10% of the work or the quoted work. The British Publishers Association lists in its Appendix to the Guide to Royal Duty Agreements a number of “fair use” word restrictions that can lead to a “general understanding” [5]. In my opinion, it must be quoted in this “quantity”. This “quantity” can be determined by the number of words quoted, the connotation of the work and the relationship between the quoted work and the cited work. Without excessive quotation of “quantity”, it will not constitute plagiarism. (4) there is a clear difference between the work and its source. In terms of quality, works can be recognized only if they are original. If we just quote other people's works and make a simple list to form our own works, the quotation part belongs to the core or the main substance of the employment works, deleting it will lead to the disappearance of originality, which is unreasonable. This use will be identified as plagiarism. China's “Copyright Law Implementation Regulations” also made a corresponding provision: “Copyright Law provides that the appropriate quotation of other people's published works, must have the following conditions:… (two) the quoted part can not constitute the main part or substantial part of the work of the employing party. ”
  
  3 Identification of plagiarism
  
  The essence of plagiarism is to falsely use the signature and confuse the source. It not only separates the author from the work, but also damages the public interest and infringes the private interest. Therefore, if we want to directly attack plagiarism, we should combine its harmfulness and constituent elements for analysis.
  
  3.1 the danger of plagiarism.
  
  In order to create a new work, the author must carry out complex thinking activities and work hard. Words and phrases in the works are the results of the author's labor, which creates the spiritual wealth of mankind, but also a concentrated reflection of the author's personal interests. For the author, his work will bring honor and economic benefits, including royalties, bonuses and so on. Plagiarists take the author's work as their own, on the one hand, infringing on the author's property rights, bringing bad effects to the author's honor, robbing the original interests of the author; on the other hand, damaging the work's signature law, blocking the relationship between the work and the author, resulting in the confusion of the development of labor results, ideology and culture. .
  
  3.2 the structure of plagiarism.
  
  The behavior of plagiarism should be analyzed from four aspects: subject, object, subjectivity and objectivity. Plagiarism is the main body of plagiarism.
  
  3.2.1 the object of plagiarism.
  
  The object of plagiarism is the object of plagiarism. In copyright, the object of plagiarism is the work. Article 2 of the Regulations for the Implementation of the Copyright Law stipulates that works, as a kind of intellectual achievement, are mainly aimed at “creative intellectual achievements in the fields of literature, art and science, which can be reproduced and stolen tangibly”. This makes the following two requirements for the plagiarism object: first, it must be the result of human creation, many of the natural landscape is not included in it. Secondly, it must be shown in some tangible form and can be duplicated. That is to say, works can not be thought or ideas in the human brain, and must be
  
  able to be perceived by people.
  
  3.2.2, subjective factors of plagiarism
  
  The determination of tort in China's civil law is mainly determined by whether there is any fault. Article 106, paragraph 2, of the General Principles of the Civil Law states that “if a citizen or a legal person commits a wrong act, it will cause damage to the property of the state, the collective or others, and infringe upon the personal rights of others, he or she shall bear civil liability.” Paragraph 3 emphasizes: “There is no fault, but the law requires that civil liability should also bear civil liability.” How to determine the plagiarism subjectively will directly affect the extent of the actor's responsibility. Richard Posner believed that plagiarism, as a kind of re-creative reproduction, was fraudulent, and whether the plagiarist had subjective intention was the basis for its establishment. Therefore, the plagiarism of the perpetrator should be determined by the way of no-fault liability. The establishment of plagiarism liability has nothing to do with the subjective fault of the plagiarist, that is, whether the subjective psychological state of the plagiarist is intentional or negligent does not affect the establishment of plagiarism liability.
  
  3.2.3, the objective factors of plagiarism
  
  Through the analysis of plagiarism in real life, we believe that the objective factors leading to plagiarism are as follows: Firstly, the ability of the actor is limited, and he can not create works that can clearly explain and show his ideas. Therefore, plagiarism is his own use. Secondly, some titles, positions and academic research are judged by the number of published works and the rank of published publications, which forces some people to plagiarize outstanding works of their predecessors in order to achieve this standard. Furthermore, some scholars plagiarize other people's labor achievements in order to realize the sublimation of the value of their works.
  
  3.3. Exceptions to plagiarism.
  
  The former is the behavior of the perpetrator as plagiarism analysis, but in daily life, there are many cases can not be identified as plagiarism, otherwise it will bring adverse impact on the development of social interests of works. There are several exceptions to the identification of plagiarism: (1) citing the content of another person's work without indicating its origin, but without confusion, can not be identified as plagiarism; (2) signing on another person's work according to the requirements of the post, can not be identified as plagiarism; (3) based on the nature or elements of the work, can not be objectively indicated. The source (such as artistic style, artistic conception, image) can not be identified as plagiarism.
  
  4, anti plagiarism legal system
  
  The law is socially recognized, guaranteed by the state compulsory force to implement, the rights and obligations of the parties as the content of the code of conduct, its greatest feature is mandatory. Only by relying on the compulsory and effective protection of the law can the significance of anti-plagiarism be realized and the plagiarism can be effectively restricted.
  
  4.1, China's current anti plagiarism legal system.
  
  At present, in the legal system of our country, the legal system of anti-plagiarism is embodied in both private law and public law. The perpetrator plagiarizes other people's works and infringes upon other people's copyright, which belongs to the object regulated in the field of private law. At the same time, because plagiarism also involves the public interest, so we need to take measures from the perspective of public law.
  
  4.1.1, private law field
  
  Article 118 of the General Principles of the Civil Law and Article 46 of the Copyright Law of China stipulate in detail the penalties for copyright infringement, that is, stop infringement, eliminate influence, apologize and compensate for loss. If plagiarism results in minor infringement and only infringes upon the author's economic interests, such as copyright fees, research bonuses, etc., the author can claim compensation for economic losses, demand that the infringement cease, and do not require him to bear other legal responsibilities; if plagiarism results in adverse social effects, he can ask for its elimination of the impact; if given to the plagiarism; Those who cause mental pain need to adopt an apology.
  
  4.1.2, public law area
  
  In the field of public law, plagiarism is regulated in both administrative and criminal responsibilities.
  
  In the administrative responsibility, the first paragraph of Article 3 of the Measures for the Implementation of Administrative Punishment of Copyright points out that the infringement listed in Article 47 of the Copyright Law is the applicable object of administrative punishment, that is to say, plagiarism must meet the requirements of infringement of public interests. Article 4 lists in detail the types of administrative penalties, including orders to stop infringing acts, confiscation of illegal income, confiscation of infringing copies, confiscation of materials, tools and equipment mainly used for making infringing copies, fines and other administrative penalties stipulated by laws and regulations. The administrative penalty for plagiarism is generally imposed by the copyright administration department, the unit where the plagiarist belongs or the subsidized unit of the relevant fund. There are mainly the following situations: the administrative penalty for plagiarism imposed by schools on students, which is in the Regulations on the Administration of Students in Ordinary Institutions of Higher Learning and the Ministry of Education's “On Seriously Handling Academic Misconduct in Colleges and Universities” There are clear provisions in the Circular for the purpose of plagiarism; the administrative penalties for plagiarism by teachers in schools are mainly based on the Academic Moral Code of each university; and the penalties imposed by research funding units are based on the Measures for Project Management of the National Social Science Fund.
  
  In the criminal responsibility, articles 217 and 218 of the Criminal Law of our country stipulate the infringement of copyright, but they mainly aim at publishing behavior, and there is no clear restriction on plagiarism.
  
  4.2, the perfection of China's anti plagiarism legal system.
  
  Although plagiarism is regulated in both private law and public law, there are still many problems in the implementation process.
  
  4.2.1, in the field of private law
  
  The legal definition of plagiarism is not clear, and there is no clear way to calculate the economic compensation liability of the perpetrator, which will lead to the application of law in judicial practice is not clear, directly affecting the protection of the legitimate rights of the parties. Therefore, the author believes that the Copyright Law should first of all clearly stipulate the circumstances and conditions of plagiarism, so that the identification of plagiarism can be legally based and legally justified; secondly, it should make a reasonable standard of judgment on the specific amount of economic compensation, so as to make the interests of the infringed party benefit. To compensate.
  
  4.2.2, public law
  
  First of all, from the perspective of administrative responsibility, plagiarism has more administrative subjects with penalty functions, which will lead to the disunity of punishment intensity and confusion of punishment procedures, coupled with the lack of detailed standards, plagiarism can not be effectively restrained. Therefore, in administrative legislation, the punishment procedures and standards of plagiarism should be more detailed; in criminal responsibility, although the current social, economic and cultural level has not reached a certain height, but the impact of plagiarism on society and harmfulness can not be underestimated, in order to truly curb plagiarism, We must rely on the criminal law to crack down severely, so the author agrees to add in the criminal law to restrict plagiarism.
  
  5 Conclusion
  
  The purpose of the author's works is to materialize his intangible thoughts and spirits to realize his value in life on the one hand, and to make his works socialized and realize his social value on the other hand. This article mainly analyzes the concept of plagiarism, the conditions for identifying plagiarism and the legal system of anti plagiarism. Plagiarism is rooted in moral integrity. To create a good creative environment, it is far from enough to rely on the self-discipline of each creator. In order to curb this unhealthy trend of plagiarism, we should standardize the relevant legal system, use legal weapons, increase the intensity of cracking down on plagiarism, strengthen the anti-plagiarism mechanism, and build a purer creative world.
  
  Reference
  
  [1] contemporary Chinese dictionary [M]. Beijing: Zhonghua Book Company, 2009:1117-1118.  
  [2] Qi Aimin, Zhou Weimeng. On the two sides of academic plagiarism: the distinction between academic norms and legal norms [J].Journal of Chongqing University, 2010 (6): 86-92.
  [3]M Lei bin de. Copyright law [M]. Beijing: Law Press, 2004:325.  
  [4] Tao fan. Rational citation on [J]. academic forum, 2006 (9): 202-204.  
  [5] Yu Jian. Reasonable reference: principles, methods and practices [J]. China publishing, 2005 (5): 43-44.
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