网络信息提供者基于网络传播行为的侵权研究
发布时间：2018-11-12 07:13
【摘要】： 网络环境下的参与者一般分为网络信息提供者和网络服务提供者。现行的立法和司法实践均普遍将归责的重点置于网络服务提供者,而对于网络信息提供者的责任一笔带过。理由是在我国现行的网络侵权认定中将网络信息提供者和网络服务提供者认定为共同侵权,而在共同侵权中,原告有权选择起诉对象。因此,出于赔偿实务的角度出发,原告往往选择那些网络服务机构,以期得到可观的赔偿。而在现实的网络侵权案件中,网络信息提供者一般是侵权行为实施的主体,网络服务提供者只是为其行为提供环境因素,且很多情况下,对前者的侵权行为不知情。从侵权法的一般原理,共同侵权应当是出于共同故意。所以,网络服务者承担主要责任的立法是有问题的。 在上述的现实下,我国网络侵权规定了网络传播权,网络侵权案件所围绕的核心也基于这一权利。然而,纷繁芜杂的网络案件中,在著作权的侵害上,除了网络传播权之外,实际上还涉及到诸多其他权利。这里包括一些传统的著作权权能,如发行权、复制权等,还同时涉及了一些网络环境下新的权能,如权利标识权等。并且在新的网络环境下,新的作品也展现出了一些区别于传统作品的特点。如上所述,新的网络环境将产生著作权的一些新的权能。而传统的将网络传播权单一地划归为传统作品的著作财产权能的做法有待商榷。 本文立足于网络环境的特色,以建立新的网络作品的著作权制度为基础,探讨网络侵权中,网络信息提供者的责任。认为应当认清网络作品与传统作品的不同,赋予网络信息传播权清晰的含义,并补充一些新的权能,使这些权利共同构筑成网络著作权。从而可以清晰地明辨网络信息提供者在侵权案件中的责任。
[Abstract]:Participants in the network environment are generally divided into network information providers and network service providers. The current legislation and judicial practice generally focus on the network service provider, and the responsibility of the network information provider. The reason is that the network information provider and the network service provider are regarded as joint infringement in the current network tort cognizance in our country, and in the joint infringement, the plaintiff has the right to choose the suing object. Therefore, from the perspective of compensation practice, plaintiffs often choose those network services, in order to get substantial compensation. In the actual network infringement cases, the network information provider is generally the main body of the infringement, the network service provider only provides the environmental factors for its behavior, and in many cases, the former does not know about the infringement. From the general principle of tort law, joint infringement should be out of common intent. So, the legislation that network service person undertakes primary responsibility is problematic. In the above mentioned reality, the network tort in our country stipulates the network communication right, and the core of the network infringement case is also based on this right. However, in the numerous network cases, the infringement of copyright, in addition to the right to spread on the Internet, actually involves many other rights. This includes some traditional copyright rights, such as distribution rights, reproduction rights and so on, but also involves some new power under the network environment, such as the right to identify rights. And in the new network environment, the new works also show some characteristics different from the traditional works. As mentioned above, the new network environment will produce some new power of copyright. However, the traditional method of classifying the right of network dissemination as the property right of traditional works is open to question. Based on the characteristics of network environment and the establishment of new copyright system of network works, this paper discusses the responsibility of network information providers in network infringement. The author holds that it is necessary to recognize the difference between network works and traditional works, to give clear meaning to network information dissemination right, and to add some new powers, so that these rights can be constructed into network copyright together. Thus, the responsibility of network information providers in infringement cases can be clearly identified.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.41
本文编号：2326424
[Abstract]:Participants in the network environment are generally divided into network information providers and network service providers. The current legislation and judicial practice generally focus on the network service provider, and the responsibility of the network information provider. The reason is that the network information provider and the network service provider are regarded as joint infringement in the current network tort cognizance in our country, and in the joint infringement, the plaintiff has the right to choose the suing object. Therefore, from the perspective of compensation practice, plaintiffs often choose those network services, in order to get substantial compensation. In the actual network infringement cases, the network information provider is generally the main body of the infringement, the network service provider only provides the environmental factors for its behavior, and in many cases, the former does not know about the infringement. From the general principle of tort law, joint infringement should be out of common intent. So, the legislation that network service person undertakes primary responsibility is problematic. In the above mentioned reality, the network tort in our country stipulates the network communication right, and the core of the network infringement case is also based on this right. However, in the numerous network cases, the infringement of copyright, in addition to the right to spread on the Internet, actually involves many other rights. This includes some traditional copyright rights, such as distribution rights, reproduction rights and so on, but also involves some new power under the network environment, such as the right to identify rights. And in the new network environment, the new works also show some characteristics different from the traditional works. As mentioned above, the new network environment will produce some new power of copyright. However, the traditional method of classifying the right of network dissemination as the property right of traditional works is open to question. Based on the characteristics of network environment and the establishment of new copyright system of network works, this paper discusses the responsibility of network information providers in network infringement. The author holds that it is necessary to recognize the difference between network works and traditional works, to give clear meaning to network information dissemination right, and to add some new powers, so that these rights can be constructed into network copyright together. Thus, the responsibility of network information providers in infringement cases can be clearly identified.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D923.41
【引证文献】
相关硕士学位论文 前1条
1 刘伟;网络服务提供者传播侵权内容行为的认定与责任[D];内蒙古大学;2011年
，本文编号：2326424
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