The Problems And Solutions On Intellectual Property Rights In Foreign Publication Trade Of China

The intellectual property came into being from the high development of modern commodity economy, which value comes true in market trade. The purpose of the system of the intellectual property is not to protect the intellectual property as much as possible, but to make the maximizing of the value of the intellectual property, and try for promoting the creation and production of the society's culture, science and art through the encouraging of the intellectual property, and attaining the maximizing of social benefits.On the angle of national strategy, our country has become the "world factory" and the important market of the world. Under this situation, the scale and efficiency of the foreign publication trade of our country are all need further development.This dissertation tries to find out solutions to a series of problems on the intellectual property from the public policy of the intellectual property to microcosmic operation of the foreign publication trade, and builds up a valid system of the intellectual property in the foreign publication trade of our country (The problems of the intellectual property in the foreign publication trade don't independently exist, but are organism),which in order to expand and develop the foreign publication trade and the creation of the culture and art of our country, promote the benefit of our publishers in the foreign publication trade, and attain the maximizing of national benefits.The dissertation tries to hold the main aspect of the intellectual property of the foreign publication trade of our country. From the field of copyright trade to the international sale of publications, from the field of the traditional foreign publication trade to the field of the foreign trade on the network, mainly through the method of induction and demonstration, the dissertation tries to organize a main framework to resolve the problems of the intellectual property in the foreign publication trade.The dissertation includes eight parts:Preface:The preface points out the reason of the research, the present status of the research, the basic point of the dissertation and the definition of the scope, the method and the process of the research.The present status of the research is that in the field of the foreign publication trade, the integral research which covers the foreign copyright trade, imports and exports of the copyright merchandise is very little. Research on describing the phenomenon of the copyright trade is much, while research by the angle of sections of the intellectual property on the above contents is little. The preface points out that it is necessary to study the whole field of the foreign publication trade from the integral angle of the system of the intellectual property.Chapter 1: The statement of problems in the intellectual property of the foreign publication trade of our country.This chapter studies the practice of the foreign publication trade of China, and analyzes the scale, the development potential of the foreign publication trade, and whether the system of the intellectual property perform its function to promote the trade and the production. The status and feature of the present copyright trade, the development status of imports and exports of the publication are all investigated. The foreign trade framework of the publication, the basic system and arrangement on the intellectual property at home and abroad are reviewed and researched. The chapter indicates that the system of the intellectual property involves the arrangement of property right and the adjustment of rules. The system of the intellectual property has the function of accelerating the production and the deal of publications.The practice and the system of the foreign publication trade of China, the basic system on the intellectual property at home and abroad are regarded as the practical condition, system condition and the existing reason on which the problem of the intellectual property in the foreign publication trade of China depends. Hereon the chapter puts forward a series of main problems on the intellectual property in the foreign publication trade of our country.Chapter 2: The problem on copyright contracts in the foreign publication trade of our country.It is necessary to absorb the mature experience of the contract of west and to form professional accomplishment in copyright negotiations on the basis of national standard contracts.It is different on the cognition and protection on copyright in different countries. Different judgments on the same fact exist because of different copyright laws in different countries and areas.This chapter studies the familiar category on copyright and contracts, essential articles of contracts about the license and transfer in the foreign copyright trade. It also discusses items in the common contract for purchasing the right of translation and for the sale of copyright, also points out the problems need much attention when making international license and transfer contracts, such as the changing exchange rate, the name in copyright contracts, advance payment, definite status on rights authorization, the purchasing on printed films and other means of book production, language, allotted time, regions, items on united publishing, additional rights and reserved items etc..The similarities and differences on the international license and transfer of copyright include: subject of action, the similarities and differences on copyright and rule over in different areas, guard time and renewal on copyright.Chapter 3: copyright agency and copyright collective management in the foreign publication trade of our country.There are two special problems in the international copyright license trade, viz. "collective license" and "copyright agency".Because the copyright owner individual is generally difficult to claim the right directly, such as the right in performance, the right in broadcast and other legal license rights, the copyright collective management organizations usually make the collective license of rights. The agreement and balance in the international copyright collective management organizations are important integral part of the internationalcopyright collective license trade.This chapter discusses how to build a mature system of copyright agency and collective management in the foreign publication trade of our country to promote development of the copyright agency and collective management agency. At the same time many problems on interest right authorization in the copyright agency and collective management are also discussed, such as authorization legal relation in copyright agency, the present status of collective management organizations at home and abroad, the supervisal on collective management organizations, the limit of legal license rights etc..The problems on foreign copyright agency and collective management on performance products and audiovisual products which must be paid attention to are also discussed, such as how to distribute and manage the charge in collective management organizations, contract terms in the authorization of performance products and audiovisual products.Chapter 4: The problem on parallel import in the foreign publication trade.The trade of intellectual property and the trade of intellectual property production carry on simultaneously in some region, which results in parallel import.The sale after gaining license authorization from copyright owners and manufacturing duplicates is on the basis of copyright trade. But directly purchasing duplicates and selling them is on the basis of goods trade. Once two kinds of the sale are derive from offshore but realize in inshore, parallel import happens.National treatment principle is a basic principle on international copyright protection, which can make the copyright be efficiently exercised, also promotes the happening of the problem of parallel import.In trademark law, China and other countries all haven't similar provision about import right. The patented product's parallel import, all countries mostly prohibit through "import right".Disputes on the intellectual property resulting from parallel import, bring the risk to the international goods trade including publications. Therefore in the salecontract, guarantee clauses on the intellectual property must be included. Because the guarantee duty of selling party is limited, the buyers should sign a contract of suretyship of infringement to reduce risk. This also involves the duty coincidence of infringement and default.Chapter 5: The problem on trademark, domain name infringement and the pseudograph in the foreign publication trade of our country.There are many problems on the intellectual property in the foreign publication trade of our country. This chapter puts great emphasis on problems of trademark, domain name infringement and the pseudograph which influence is enormous in recent years in the foreign publication trade of China Some famous and typical cases in these problems bring important reference and thinking to publishing industry.For example, the distinguishing visibility mark that is possessed by copyright owners can be registered as trademark, so some books which enter the public field would still suffer the restrict of trademark exclusiveness.Some publishers engaged in the foreign publication trade, may encounter the dispute on domain name. Further more their domain names can be registered with bad faith.The pseudograph which imitates bestsellers of other countries has great advantage of the price and the time comparing with books of which the copyright is normally bought from abroad. With the continuous development of foreign copyright trade, the phenomenon of pseudograph has been blooming in recent years.The chapter also analyses copyright infringement of the pseudograph, including the infringement of imposture, the infringement of the right of translation, the pseudograph and copyright management register.Chapter 6: The copyright management on the internet foreign publication trade of our country.Along with the development of the high and new-technology and internet, the foreign publication trade extends to the network with a form of the internet foreign publication trade. Under the internet environment, traditional territoriality ofcopyright still does the function.Of the same language the internet publication can be directly distributed and sold on the network in different countries and regions. The sale of internet publication can spread on Hong Kong, Macau, Taiwan, Singapore etc., to all readers understanding Chinese in the world.The internet publication include books, newspapers, periodicals, audiovisual products, electronic publications and productions published on other media, which are digital editions of traditional publications. The internet foreign publication trade is the reflection of traditional foreign publication trade on the network.The internet foreign publication trade is also the international communication of information on networks and involves a series of new contents of copyright management such as licensed use expenses, time limit, the range and measures on the right of information on networks.Conclusion and prospect of the research:This section looks back the main logical study thread of the dissertation. From the field of copyright trade to the international sale of publications, from the field of the traditional foreign publication trade to the field of the foreign trade on the network, the section make a analysis of the main framework established in the dissertation to resolve problems on the intellectual property in the foreign publication trade, and emphasizes that the system of the intellectual property in the foreign publication trade which established in the dissertation through the method of induction and demonstration, is organic and developing.This section also points out the field we must pay more attention to with the developing of the technology and network, with the developing of the e-business and international trade. And it discusses the prospect of the research.