Intellectual property rights is the right to appeal to enjoy physical condition

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Intellectual property rights is the right to appeal to enjoy physical condition

Published :2014 -02-12 Source: SoftBrands Intellectual Property

In judicial practice, intellectual property rights , intellectual property rights are sometimes encountered people authorize others to the identity of the plaintiff ´s rights cases , the authorization is allowed by law can often lead to controversy. The following case is a typical example :

American Rhino Software.Inc is the copyright holder Serv-U FTP 6.4 computer software , the company ´s authorized representative to sign the power of attorney to the Shanghai Intellectual Property Agency Ltd. Guohui ( hereinafter referred to as the country Whitney ) , authorization shall be: State benefits Company reserves the right in its own name in the United States deal with violations of the company´s software copyrights, trademarks ( including but not limited to, involving software Serv-U software versions ) , including intellectual property matters , including legal representation, investigation and evidence collection in China , accepted reconciliation, to bring a civil action to the Chinese court , accepted for execution of the subject matter , etc. ; entrust period from 1 January 2012 to 31 December 2015 .

State benefits company said its July 2012 by way of network monitoring , discovery of the company ´s Web site Shenzhen Arts unauthorized copying using Serv-U FTP 6.4 software , because the site is involved in large companies to help build capacity in Shenzhen , the country Whitney believes Shenzhen Arts of the company , Shenzhen Yung large companies constitute contributory infringement . Based on this , the country benefits the company as a plaintiff , the Shenzhen Arts for the company, Shenzhen Yung large companies as defendants sued Shenzhen court , requesting an order the defendant to immediately stop using and uninstall the Serv-U FTP v6.4 websites accused of piracy on the use of software , apologize and compensate the plaintiff economic loss of $ 300,000. State benefits for the company´s infringement allegations , defending , said the two defendants , the plaintiff has the right to national identity Whitney rights lawsuit filed , the defendant nor the implementation of copyright infringement.

Differences between countries Whitney plaintiff filed a complaint case of copyright infringement , which comply with the law do ? Deal with this , there are three different views .

The first view is that the country benefits the company filed with the identity of the plaintiff ´s rights litigation , compliance with the law. The reasons are: the present case, the United States Rhino Software.Inc is Serv-U series of software copyright owners , the U.S. company has authorized the company to benefit the country ´s identity plaintiff copyright rights litigation , the Civil Procedure Law does not prohibit licensed content , and consequences will not harm the rights of others . Meanwhile , Rhino Software.Inc for U.S. companies , which uses the case of licensing, more conducive to lower their cost of rights , thus facilitating foreign rights , the law should not give negative evaluation .

The second view is that , in this case , Walter brought the company to the identity of the plaintiff ´s rights litigation conditions , in addition to the United States Rhino Software.Inc companies have licensed , but also have to force approval of the Shenzhen Arts , Shenzhen Yung large companies agree but the two companies do not agree with the United States Rhino Software.Inc ´s approach . In view of this , the company is not entitled to state benefits plaintiff ´s identity rights lawsuit filed , the plaintiff does not apply to the main grid , the Court should have ruled the prosecution dismissed the country ´s benefit .

A third view is that the country benefits company based in the United States Rhino Software.Inc company authorized its right to acquire only the rights activist , it has not made substantive rights involved in computer software copyright . Thus , the country with the case did not directly benefit the company stakes right to a separate identity to the plaintiff filed the lawsuit . Shall be in accordance with Article 119 of the Civil Procedure Law Section ( 1), " the Supreme Court opinion on the application < People´s Republic of China Civil Procedure Law > Issues " The first provisions of Article 139 , the court rejected the State Whitney prosecution .

Comment on merits of the case seem simple, but there have been three different perspectives , which is very rare in judicial practice . I think, first , in accordance with copyright laws and regulations to analyze , the country benefits the company has no right to sue the plaintiff status .

Under normal circumstances , the copyright holder to exercise the copyright in two ways : First, the exercise of copyright holders themselves ; Second authorize others to exercise the copyright holder . Copyright copyright holders exercised their own circumstances , such as the copyright infringement of others , the copyright holder subject to the identity of the plaintiff´s lawsuit filed rights litigation, is beyond doubt. If you own the copyright holder of the copyright license to others to use , depending on the scope of authorization , copyright license can be divided into an exclusive license , exclusive license , general license three types. According to China´s Copyright Law and related judicial interpretations , copyright is licensed to use at the time of the infringement of copyright is , whether the identity of the plaintiff ´s rights lawsuit filed , due to the above-mentioned person is licensed to use different types of authorized vary , is the subject of proceedings to determine the status of people licensed to use the following rules:

Exclusive license contracts licensee, can be independent subject of proceedings ( plaintiff ) separately filed rights lawsuit to the people´s court ; exclusive licensing contract licensee , can work together with the plaintiff ´s identity to bring rights litigation and copyright holders can also be in the case of the copyright holder not to prosecute their own identity to the plaintiff filed suit activist ; ordinary license contract licensee expressly authorized by the copyright owner , can the plaintiff ´s identity rights lawsuit filed . From the above provisions , the copyright licensing contracts in general licensee is not authorized by the copyright owner , the plaintiff is not able to sue the individual ´s identity , that ordinary people do not have an independent licensee of litigation dominant position .

According to the facts found in this case , the United States Rhino Software, Inc company enjoys involved in computer software copyright, an entity which is not the right software copyright license to the country Whitney exercise , but the right software copyright rights have been violated when the authorization to State Whitney exercise , based on the country Whitney mandate to the identity of the plaintiff filed the infringement of copyright rights litigation . Thus the fact that the minor premise , the facts found in the case of the above with the applicable provisions of the copyright laws and norms , is completely different . Thus , according to the norms of the above copyright law , companies can not find the country benefits eligibility as the legal basis for the identity of the plaintiff .

Since we can not determine the substantive law of the country from the copyright Whitney eligibility as a plaintiff is legitimate , it is necessary to apply the basic principles of civil litigation , the plaintiff´s case to analyze the eligibility issue.

Secondly, according to the Civil Procedure Law of the analysis, the country benefits the company has the right to sue the plaintiff status .

Civil action means the parties on specific civil disputes raised by the people´s court in their favor referee request. Civil Procedure consists of three basic elements, namely the reasons the parties , the subject of litigation and litigation . Parties in a civil action , the civil rights and obligations of a person because of a dispute , the proceedings in its own name , and the referee restrained by the court . Civil litigation is the subject of a dispute between the parties and the court for civil rights and obligations referee . Civil proceedings on the grounds that the plaintiff refers to the factual and legal basis for prosecution , including the fact that the factual basis or legal relationship infringement dispute rights are .

Pursuant to the provisions of the Civil Procedure Law , Civil Procedure parties shall eligibility . Eligible parties refers to a specific qualification in litigation, sue and be sued as a party to the case . In order to be able to make civil litigation between the parties to carry out the appropriate grid , but also to make the magistracy meaningful , need a certain standard to measure the plaintiff ( the plaintiff ) and the respondent ( defendant ) if it is the case of eligibility parties . Since the state set up a civil action is intended to resolve disputes between the parties through the civil rights of the court ruling , but also because of obligations between the parties on the substantive law of the civil rights dispute occurred only necessary to find a solution through litigation , so under normal circumstances should be based on the relationship between civil law dispute whether the parties (in this case the subject matter of litigation ) of the subject , as the parties to determine whether eligibility criteria . When Under this standard, where the subject of civil rights or civil legal relationship to the right or legal relationship is the subject of litigation proceedings , the parties are generally eligibility .

The plaintiff , the defendant is the most basic civil proceedings the parties , the case involves whether the plaintiff´s main qualification eligibility issues. Plaintiff refers to protect the civil rights of their own , or be managed by others, in their own name to the courts , causing people civil procedure occurred. Code of Civil Procedure is public law , on the contrary it is usually implemented with private civil "law that prohibited without lawful " concept , the general implementation of " no legal authority that does not allow " rule. According to China´s Civil Procedure Law, the provisions of Article 119 , the plaintiff should have the eligibility of three conditions , namely, the plaintiff in this case there is a direct interest in the citizens, legal persons or other organizations ; clear the defendant ; has specific claims and factual grounds . In the present case , the country benefits the company does not enjoy substantive rights involved in the software, does not enjoy the rights involved in trust management software. This indicates that the present case does not exist between the accused infringer substantive rights and obligations of a civil , there was no relationship between the dispute arising therefrom . In other words , it does not exist a direct interest in the case of disputes , the identity of the plaintiff is not entitled to rights lawsuit filed .

Again, from the perspective of the balance of interests , the national identity of the benefits the company has no right to sue the plaintiff .

Whether intellectual property law or civil procedure law , the principle of balancing the interests of these important considerations are the basis for the legal system settings related to the subject of rights and obligations . Meanwhile, in the implementation of intellectual property law and civil procedure law of judicial practice, to follow the principle of balancing the interests of all parties to judge the legality and legitimacy of behavior , is also one of the important methods used by the judge handling the case . Thus , the legal relationship between the parties to maintain a balance with the public interest of the community , is to determine the country Whitney as an important principle in this case the plaintiff´s eligibility .

In the present case , the United States benefits Rhino Software.Inc authorized the company to the plaintiff ´s identity copyright rights litigation , the license is indeed possible to reduce the cost of rights of U.S. companies , and to facilitate foreigners rights. It should be noted that the country benefits the company´s actual interest in this case is , access to legal services through a proxy litigation fees , which means that its proceedings should position itself as a legal representative , rather than the plaintiff . At this point the identity of the plaintiff if he considers it appropriate grid, it means that it can be readily transferred to profit the plaintiff´s identity , which will lead to a civil action in many of the basic system would become a mere figurehead . For example , do not enjoy substantive rights , the situation but there is the risk of the agent in charge of the case, the plaintiff is likely to get more agency fees but refused to accept the mediation concluded , to the detriment of the interests of the copyright owner and the defendant. And lead to litigation dispute resolution mechanism is not efficient. Whitney State case to sue the plaintiff ´s identity , does not comply with the law.

In this paper, by analyzing the case , it can be concluded that intellectual property right of appeal shall enjoy the right to physical condition , no substantive rights that no right of appeal.