On The Judicial Application Of The Defense Of Lawful Source In Copyright Infringement Disputes

In copyright infringement disputes,it has become the norm for the alleged infringer to claim that he has a lawful source defense and does not bear compensation.However,the legal provisions are too brief,and various disputes have arisen in the judicial application of the cause of the lawful source defense,especially the different standards for establishing the lawful source defense adhered to by the court,and even the situation of different judgments in the same case.In order to achieve the purpose of protecting reasonable reliance interests,safeguarding the circulation of intellectual products,and promoting the dissemination of knowledge,the legislator has positioned the lawful source defense as the defense against the fault element,the establishment of the lawful source defense hinders the achievement of the fault element,and the alleged infringer is exempted from liability for damages because it does not meet the fault element.As a specific application of the principle of protection of reliance interests in the field of copyright law,the defense of lawful sources has the commonality of the reliance protection system,that is,"good faith" is used as the basis and constituent element for the protection of third parties.At the same time,due to the immateriality of the work and the high necessity of the transaction of the work itself,the defense of legal source has the characteristics that the constituent elements are deeply affected by the work,and its application does not need to consider the attributability of the copyright owner.After combing through the points of dispute among judges in the judgment documents,there are mainly four issues in judicial practice: unclear scope of applicable subjects,inconsistent constituent elements,inconsistent application consequences,and controversy over whether co-defendants can be added.In order to correctly apply the cause of the defense of legitimate sources,the deep-seated causes of the above problems should be analyzed one by one,and targeted and operable suggestions should be put forward in combination with the positioning and characteristics of the rules of the cause of the defense of legitimate sources.In view of the unclear subject of application,starting from the purpose of the rule of the cause of the defense of lawful source and the nature of the issuance act,sellers who only have pure sales activities other than the source seller are listed as eligible subjects.In view of the problem of inconsistency of the constituent elements,it is uniformly stipulated that the constituent elements of the defense of lawful sources include objective lawful sources and subjective good faith.Among them,the proof of the objective and legal source is the existence of the fact of trading copies of works in accordance with the provisions of the Civil Code Contract Series,Civil Code Property Rights and the Special Law.According to the division of good faith within the reliance interest protection system in the field of private law,the subjective good faith of the cause of the defense of lawful sources should be that the copy of the work sold without knowing and not negligent infringes the copyright of others,and the burden of proving the subjective good faith is borne by the defense,and the defender only needs to prove that he has fulfilled his duty of reasonable care to presume his subjective good faith.The content of the judge’s review of whether the defendant has fulfilled the duty of reasonable care in the judgment document can be summarized as: whether the copy involved in the case has an objective and legal source,the price difference between the selling price of the copy involved and the price of the genuine product,the difference between the outer packaging of the copy involved and the genuine product,the popularity of the work involved and the information outside the transaction indicating that the product sold may be a copyright-infringing product,etc.In view of the burden of reasonable expenses after the establishment of the lawful source defense,the court should,for the sake of fairness,support the copyright owner’s requirement for the defense to pay reasonable expenses for rights protection.In the case of a dispute over whether the direct supplier can be added as a co-defendant in the process of applying the defense of lawful sources,the court shall add it if it meets the provisions of the civil procedure legal system on the addition of co-defendants.