Research On Civil Liability Of The Copyright Infringement Of Entrust Creation

In modern society, with the development of the more and more specialized division of labor, the professional division of labor in various areas becomes more highly specialized, and the most obvious is that the pattern of the height division of labor of entrust creation in the field of copyrights is becoming more and more common in society. The entrust creation that meets the special demand on particular works of consignor, and also realizes the social value and economic value of the consignee's professional knowledge. At the meanwhile, the cases of the infringement of the third party copyright in entrust creation is increasing and more complicated. At present, the discrepancy between the theory research and legislation make imperfect uniform in application of law and bearing liability, leading to different sentences with the same cases, unfair apportionment of liability and poor social result in the judicial practice. Therefore, it is of great theory and realistic significance to further research the copyright infringement liability of entrust creation.The purpose of this paper is to analyze systemically the copyright infringement liability of entrusted creation to clearly define the reasonable distribution of the copyright infringement liability of entrust creation to ensure the rights remedy of the third party's copyrights to enhance the judicial efficiency. The concrete ideas are as follows:first to clarify the main concepts and then divide the copyright infringement liability of entrust creation based on the realistic manifestations of copyright infringement liability of entrust creation into three categories, namely the separate tort liability of consignee, the vicarious liability of consignor and the common infringement liability of both consignor and consignee. And finally to spread typification research based on the forms of basic theory, imputation principles of liability, constitution elements of liability and the civil liability.The paper is composed of six parts:introduction, five parts of main body and conclusion.The preface part of this paper is to introduce the background and the significance of paper, the current research situation at home and abroad, the methods and contents of the research, and the innovation points and disadvantages.The body is vided into five parts:The first part-to elaborate the basic theory of entrust creation by the definition of entrust creation, its features and characteristics of entrust creation contract. First to define the concept the entrust creation and analyze the characteristics of entrust creation and to know that the entrust creation easily leads to the liability of the third party's copyrights infringement by analyzing the characteristics of entrust works, and then to analyze the features of the entrust creation contract to define clearly the entrust creation contract as a nameless contract hence when it comes to the dispute of copyrights infringement of entrust creation it is not applicable to relevant tort liability mode of name contract and it should be further researched.The second part—be basic theory of entrust creation copyrights infringement liability and the liability types, by the concept, characteristics and the modes of infringement of the copyrights infringement of entrust creation and the comparisons of the entrust creation copyrights infringement and common copyrights infringement, pointing out the liability of entrust creation copyrights infringements should be spread researched. And then based on the characteristics of entrust creation copyrights infringement and realistic manifestations, the liability of entrust creation copyrights infringements is classified as three categories, namely tortious liability of individual copyrights of consignor, the vicarious liability of consignor and the common copyright infringement liability of both consignor and consignee. That is the innovative point of this paper.The third part—the research of separate tort liability of consignee mainly to analyze systematically tortious liability of individual copyrights of consignor by the forms of the tort liability type of consignee, imputation principles of liability, constitution elements of liability and the civil liability. Because of the existence of the system of vicarious liability, the consignee to the third party is not necessarily assume complete personal responsibility and the mode of the consignee bearing liability should be clearly defined in the statement of the consignor vicarious liability.The fourth part—the vicarious liability of consigner is to elaborate mainly by combining the theory of vicarious liability and copyrights infringement and the common liability theory. To analyze the vicarious liability of consignor based on the clear definition of common vicarious liability and then according to the civil liability of consignee's separate infringement and the fault degree of consignor and consignee, to reasonably distribute the infringement liabilities of the consignor and consignee and there are three modes of bearing liabilities, i.e. completely vicarious liability of consignor, the shared liabilities of both consignor and consignee, and the joint liability of consignor and consignee. Vicarious liability system on one hand to reflect the the principles of liability repay and fairness, on the other hand, it also enable to make the creation behaviors of both the consignor and consignee more reasonably in the manner of duty care obligation and monitoring obligation to reduce the occurrence of infringement behavior in the entrust creation.The fifth part—the research of the common tortious liability of both consignor and consignee, and to spread elaborate it by combining the common principle of joint tort and the universal principle of entrust creation infringement. In accordance with the different tort forms of the both consignor and consignee at the same joint torts, and to whom make a difference between in the forms of tort form, imputation principles of liability, constitution elements of liability and the civil liability, etc. Vicarious liability system on one hand to reflect on one's own responsibility and the principles of fairness.The final research shows that to typed analyze the copyright infringement liability of entrust creation, at different liability types, to realize the reasonable distribution of copyrights infringement liability between the consignor and consignee, that indicates the principle of liability compensation theory and fairness principle and at the same time it is good to fully guarantee the right remedy and enhance the judicial efficiency of the third copyrights.