| Cessation of infringement is an important civil relief measure for copyright owners,which plays a very important role in copyright protection.The cessation of infringement in China’s copyright law is equivalent to the permanent injunction in the equity law of Anglo-American law countries.Globally,there are ruling precedents and legislative practices that limit the application of the cessation of liability for infringement or do not issue a permanent injunction on the premise that the court found that copyright infringement is established.Unfortunately,the current study on this problem is not systematic,nor can it be discussed in a broader theoretical field.For a long time,China’s courts in the trial of copyright infringement cases,uphold the copyright "real right-like" mode of thinking,once found that the infringement is established,it will be absolutely,naturally applied to stop the infringement liability.In recent years,China has begun to appear in copyright infringement cases to limit the application of ceasing the infringing act.Although the number is not large,the resulting dilemma of "legislation is unbroken and the judiciary is broken without foundation" has caused academic and practical circles Deep reflection.In response to China’s judicial dilemma,this dissertation puts the study on the restriction on ceasing the infringing act in the copyright infringement into the theoretical system of copyright right limitation,discussing the relevant theoretical background,change and development,challenge and response,which has important theoretical significance and practical value.This dissertation adopts the thinking approach of combining the general research with the individual research,and combining the theoretical research with the applied research,and uses a variety of analytical methods to explore related issues.In addition to the introduction and conclusion,the full text contains five chapters:The first Chapter is the changes of the restriction on ceasing the infringing act in the cases of copyright infringement.This chapter includes three parts: historical staging investigation,change of copyright limitation theory,theoretical reflection and conception remodeling.In history,the application of the responsibility to stop infringement has changed according to the local people’s understanding of the nature of copyright law at that time,and its evolution has roughly gone through three historical periods of relative application,absolute application and limited application.This period of history also reflects the continuous deepening of human understanding of the nature of copyright,from ignorance of rights protection,to domination by the concept of natural rights,and to rights restriction theories based on the balance of interests.In the current historical period,the existing copyright restriction system has exposed its own limitations,and it is difficult to effectively exert the function of restricting the unreasonable expansion of copyright.Utilizing the analysis framework of "original rights-relief rights",in the cases of copyright infringement,the application of the ceasing the infringing act can be restricted,and the purpose of restricting the exercise of copyright can be achieved by limiting the right of relief;Theoretical analysis and comparison,this dissertation believes that limiting the application of the responsibility to ceasing the infringing act is an effective "post hoc restriction" and an indispensable important link in the theory of copyright limitation.Based on the investigation of historical experience and the discussion of theoretical development,we can recognize that the absolute application of the responsibility of ceasing infringement in copyright cases is derived from the domination of the "real right-like" thinking paradigm.Therefore,only by reconstructing the pragmatic concept of copyright can we criticize the wrong ideas and keep a clear understanding,and guide the right direction for the restriction on cease-infringement liability in cases of copyright infringement.The second chapter is about the justification of restricting the cessation of copyright infringement.From the perspective of legality,restricting the application of the responsibility for ceasing infringement has the institutional basis of copyright law,civil law,and the constitution.In a view of jurisprudence,restricting the the responsibility of ceasing infringement in copyright cases is to meet the order requirements of law and the requirements of achieving the value of justice.From the perspective of law and economics,the liability rules and inalienable rules under the "Ca-Me Framework" provide a theoretical basis for limiting the justification of ceasing the infringing act in copyright infringement.In addition,realists think changes in social relations caused by technological progress,copyright capitalization,and globalization of copyright law are the political and economic basis for limiting the application of the responsibility to cease the infringement in copyright violation cases.The third chapter is the circumstance that restricts the application of the liability to ceasing the infringing act in copyright cases.This chapter is based on the localized research ideas,and takes the several situations proposed in China’s current judicial policy to limit the application of the liability to cease infringement in copyright cases as the main analysis objects.It is compatible and compares the usefulness of legal ideas and personalized ideas.The opinions have been elaborated in detail on the three situations that are contrary to the public interest,the imbalance between the interests of the parties,and the inability to execute.The fourth chapter is the alternative relief after limiting the application of ceasing the infringing act.Alternative relief refers to other civil remedies created by the court for the purpose of compensating or compensating the right holder for the purpose of compensating or compensating for the infringement of the non-applicability of the liability for ceasing the infringement in a copyright case.Due to the epistemological differences between moral rights in works and property rights in works,the extent to which they should be restricted is different,and the alternatives to alternative relief are also different.Therefore,this chapter provides alternative relieves to these two rights violations dividually.Alternative remedies for infringing moral rights in works include apologise,elimination of inpact,restoration of reputation and compensation for losses;while the alternative remedy for infringing property rights in works is the reasonable use fee paid through judicial compulsory license.Among them,this chapter also puts forward its own opinions on how to apply the judicial compulsory license procedure and determine the reasonable use fee.The chapter five is the improvement of the system to restricting the cessation of copyright infringement.After the discussion of the previous chapters,this chapter intends to translate the theory into practice and put forward specific opinions and suggestions for the improvement of related systems.Judging from the current stage of the revision of the Copyright Law,it is no longer realistic to hope that the opinions and opinions of this dissertation will be adopted in legislation.However,the provision of relevant issues through judicial interpretation can not only solve the dilemma of judicial practice,but also accumulate valuable experience for the perfection of future legislation.Based on this,the "legislation-judiciary" linkage method should be used to regulate the specific circumstances,consideration factors,and alternative remedies for restricting the application of the infringement liability in copyright infringement. |
