See if you can use it. Of course, the number of words can exceed ... we have to sort it out-
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Appellant (plaintiff in the original trial, defendant in counterclaim) Qingdao NetStar Electronic Commerce Co., Ltd. (hereinafter referred to as NetStar Company) and Appellee (defendant in the original trial, counterclaim plaintiff in the original trial) Qingdao NetStar Information Technology Co., Ltd. (hereinafter referred to as NetStar Company). The appellant NetStar Company refused to accept the (200 1) judgment of the Shinan District People's Court of Qingdao.
The facts ascertained by the court of first instance are as follows:
Netstar Company was established in May 1999, and registered its domain name in June 1999/March 24, 2000. The company signed a website construction contract with Qingdao Branch of Zhong Yi Famous Brand Import and Export Corporation (hereinafter referred to as Zhong Yi Famous Brand), stipulating that Netstar Company would design the website for Zhong Yi famous brand, and the design fee was: the registered domain name included the international top-level domain name/,/(the fee for the first two years was 600 yuan. Every year 1500 yuan for virtual host, 400 yuan for IP resolution, 800 yuan for HTML structure page, and 10000 yuan for English home page. After signing the contract, the Zhong Yi famous brand website and FLASH, the subject of the contract, were generated or modified at 5438+0 on July 30, 2006, and the rest of the source programs were generated from March 19 to May of the same year. Zhong Yi famous brand actually paid 27,250 yuan to NetStar Company.
Internet company was established on June 25th, 1998, and registered the code of domain name/on August 20th. The reason why this code appears is because the English network company used teleport software to download Netstar's website as a reference when making the website of Shandong Electromechanical Network. Netstar therefore spent 1000 yuan on evidence preservation.
There are some similarities between the homepage of Zhong Yi famous brand website made by Netstar Company and the homepage made by Wang Ying Company for Bailong Company, Sanjia Computer and Zhi Heng Company: (1) There is a wide horizontal bar at the top of the page with a picture on the far right; (2) On the far right of the page are the information items listed item by item vertically, and each item is connected with the picture in (1) by a line; (3) The bottom of the page is an arc thick strip.
Compared with the homepage of Shandong Electromechanical Network made by Wang Ying Company for Qingdao Kangpaite Electromechanical Engineering Co., Ltd., the homepage of Zhong Yi Famous Brand Network made by Netstar Company has the following similarities: (1) The icon on the left at the top of the page, the enterprise name on the right with a wide yellow bar as the background, and the picture on the right; (2) On the rightmost side of the page are information items listed item by item vertically, and each item is connected with the picture in (1) by a line; (3) The bottom of the page is a light blue arc-shaped thick horizontal bar, and the center of the page is an arrow decorated by artists (in different forms). Click it to turn the page up, and a thin horizontal bar will fill the blank background under the thick horizontal bar. Except for the arrow, the above three points are basically similar to the webpage mentioned in the previous paragraph. However, the web page making software used by Netstar Company to make China famous artists' web pages is different from the "Microsoft FrontPage 4.0" web page making software used by British network companies to make Shandong Electromechanical Network, and the source code is basically different.
The court of first instance held that there were two points of dispute between the two parties: first, whether the web page of Shandong Electromechanical Network produced by British Internet Company copied the web page of China famous art website produced by Netstar Company; Second, whether the webpages of China's famous art websites made by Netstar copied those made by British Netstar for Bailong Company, Sanjia Computer and Zhi Heng Company. However, the essence of the dispute lies in whether Netstar or Internet companies enjoy the copyright of similar web pages; Because the information and patterns displayed by the two websites are different, this case only tries the copyright ownership of the layout design of the webpage.
The web pages of Shandong Electromechanical Network made by Wang Ying Company have intuitive similarities with those made by Blum Company, Sanjia Computer, Zhi Heng Company and Zhong Yi famous brand website made by Netstar Company. The webpage design time of Zhong Yi famous brand websites is from March 19 to May 15 in the same year, and the webpage design time of Blum, Sanjia Computer and Zhi Heng Company is at the end of June 1998. As far as the design order is concerned, in the case of excluding the right holders outside the case, Netstar Company should refer to the page layout of Bailong Company, Sanjia Computer Company and Zhi Heng Company when making China Famous Art Network.
The object of copyright protection in China, that is, works, must have three characteristics, namely originality, tangible reproduction and intellectual creation. The web page that people intuitively feel is a visual or auditory effect displayed by hardware devices such as computer screens, and its origin is a computer program or audio-visual effect that can produce this effect. Audio and video recordings are not the object of this case, but computer programs belong to the category of works that conform to legal characteristics and are protected by copyright law; Web page is the result of computer program running, that is, the external performance. There is a one-to-one causal relationship between computer programs and their external performance, and the external performance directly reflects the running results of internal programs. The unity of the two embodies the intellectual work of the creator, and the original part constitutes the work, which is protected by copyright law. The external expression depends on the internal procedure and cannot exist independently, in other words, the external expression without the procedure cannot become the work itself independently. Just because the intuitively perceived web page layout is quoted or imitated by others does not mean that the infringement must exist, because the web page layout displayed to the outside world is a visual effect, and visitors can only perceive the creator's thinking from it. This kind of uncured thinking is not a work advocated in copyright, so simply imitating thinking does not violate the legal provisions, otherwise there will be adverse consequences of abuse of rights, which will hinder the development of science and technology, literature and art.
The layout of web pages is similar, but the corresponding computer programs are not necessarily similar. The same interface (web page) can be generated by different development tools and software, and there is no one-to-one absolute causal relationship between the interface and the program. Although the webpages of Shandong Electromechanical Network, Bailong Company, Sanjia Computer and Zhi Heng Company produced by British Internet Company are similar to those of China famous art websites produced by Netstar Company, British Internet Company failed to prove that Netstar Company copied its source program, and the fact that the layout of individual webpages is similar is not enough to prove that Netstar Company infringed copyright.
The words "Shandong Electromechanical Network Website" produced by British Internet Company were deleted, but the fact that the appellee infringed has been established. If the source program has no influence on web page making, why did the appellee rob the appellant's source program? The appellee obviously copied the appellant's page design. Second, the court of first instance presumed that it was groundless for the appellant to cite the web pages of Blum, Sanjia Computer and Zhi Heng Company when making famous China art brands. The appellee submitted a webpage that had never been published online to the court, and the court found that its authenticity was wrong. The copyright of web pages must be displayed on the Internet to be protected by law. The appellant asked the court to cancel the judgment of first instance, ruled that the appellee's infringement was established, and ordered the appellee to stop the infringement, apologize, compensate for economic losses and bear legal fees, notary fees and other expenses.
The appellee replied that the webpages designed by Internet companies for Bailong Company, Sanjia Computer Company and Zhi Heng Company were works protected by copyright law, and the appellant, as the designer, enjoyed copyright. The copyright of such web pages shall belong to the appellee. The homepage of the famous China art website designed by the appellant is similar in structure to the webpage designed by the appellee in advance, and has copyright. However, the appellant can't prove that his works were independently conceived and created, so it should be considered that the appellant has infringed the appellee's copyright. The first-instance judgment ignored that the Shandong Electromechanical Network made by British Internet Company was designed and made with reference to the webpage of Zhi Heng Company, and Zhi Heng Company owned all its copyrights. The British network company used teleport to download Zhi Heng Company as a reference when doing the Shandong electromechanical network. The revision of moftec.gov.cn in tppabs= was mistakenly changed to netstars.com.cn (it should be yingnet.com) due to the staff error of the British Internet company. The appellee completely designed and produced Shandong electromechanical network by himself, and the court of first instance lacked factual and logical basis for its identification and analysis.
During the second trial, neither party provided new evidence to our court, and the facts identified by our court were consistent with those identified by the court of first instance. In addition, it is found that dreamweaver2.0 is a web page making tool used in China famous art websites made by Netstar Company.
We believe that this case belongs to a web page copyright infringement dispute. According to the ascertained facts of the case, we can see that the disputed webpage, that is, the webpage of China famous art brand made by Netstar Company, is different from the webpages made by British Internet companies for Blum Company, Sanjia Computer Company, Zhi Heng Company and Qingdao Kangpaite Electromechanical Engineering Co., Ltd., but it is similar in the layout design of the webpages. That is, the distribution of the title bar, the picture on the upper right, the hyperlink column on the right and the bottom of the page are similar. Whether the similarity of web page layout constitutes plagiarism in the sense of copyright law is the focus of controversy. First of all, our college has made the following determination on the copyright of web pages:
Web pages are the basic documents on the global wide area network, and they are written in HTML (Hypertext Markup Language). Documents written in this HTML language are usually called the source files of Web pages. The source files of web pages are displayed in computer output devices with multimedia effects such as words, images, sounds and their combinations through related web browsing programs (such as Microsoft's Internet Explorer) to provide information to computer users. Web pages are stored in digital form in computer storage devices and can be copied in various forms. If designers combine various elements of web pages in the process of making web pages, carry out creative intellectual work and form new forms of works, then web pages, as digital works, should be protected by China's copyright law.
Generally speaking, web pages are composed of text, graphics, web banners, tables, forms, hyperlinks, banner advertisements, subtitles, hover buttons, datestamps, counters and other elements. If there is no agreement on the copyright ownership of the webpage or the agreement that the copyright belongs to the designer, the webpage designer, as the author of the assembly work, enjoys the copyright of the webpage as a whole. The elements that make up a web page can be divided into creative elements and non-creative elements according to whether they are original or not and whether they can be physically copied in some way. These elements, which can exist independently of web pages, can be used as written works, artistic photography works and computer programs, and are protected by China's copyright law. However, whether the layout design of web pages is protected by copyright should be analyzed according to the provisions of China's copyright law.
China's copyright law does not separately protect the layout of web pages. The reason is that the layout design of web pages can achieve good visual expression through the spatial combination of words and graphics, but the layout design of web pages cannot exist independently without specific words and graphics, and a single layout design does not constitute a work in the sense of China's copyright law. Therefore, due to the lack of basic conditions that constitute a work, that is, specific forms of expression, web page layout design can not enjoy copyright alone. Although the law stipulates that publishers have the exclusive right to use the layout of books, newspapers and magazines they publish, the subject of the neighboring right of this copyright cannot be interpreted arbitrarily. In the absence of clear provisions in the law, the copyright owner of a web page does not enjoy the neighboring right of the copyright. Therefore, because there are differences in characters and graphics between China Art Famous Brand Network designed by Netstar Company and Shandong Electromechanical Network designed by British Internet Company, the Appellant's request to protect its webpage layout design according to copyright law is not supported by our court.
Teleport is an offline browsing tool. Its function is to browse the web offline or download files from the internet. Through this software, you can create a complete website image on the local hard disk. The code tppabs= ""appeared in Shandong Electromechanical Network produced by British Internet Company, indicating that British Internet Company used teleport download tool to download the webpage produced by Netstar Company. However, the court of first instance held that the code does not necessarily indicate that the webpage downloaded by the Internet company is the homepage of the famous China art website produced by Netstar Company, and China's copyright law does not prohibit citing the works of other copyright owners when creating works. Dreamweaver2.0 is the web page making tool used by Appellant Netstar Company to make the web pages of famous Chinese artists, while FrontPage is the web page making tool used by Appellant English Network Company to make the web pages of Shandong Electromechanical Network. Appellant did not provide evidence to prove that the source files of the two web pages are similar. Therefore, the appellant decided that the evidence of English network company's plagiarism was insufficient only because there was a code pointing to the appellant's website in Shandong Electromechanical Network made by English network company, and our court did not support it.
To sum up, the court of first instance found that the facts were clear and the applicable law was correct, and the appellant's appeal grounds could not be established, so our court did not support it. According to Item (1) of Paragraph 1 of Article 153 of the Civil Procedure Law of People's Republic of China (PRC), the judgment is as follows:
Reject the appeal and uphold the original judgment.
The case acceptance fee is 3 180 yuan, which shall be borne by the appellant.
This is the final judgment.