Viewpoint | Research (IV) on the Nature of Network Writing Agreement and Related Copyright Issues

Published:

2021-12-24

Abstract: The difference between the creation and utilization of network literary works and traditional written works is not only the difference between carrier and media, but also the relevant business model is completely different from the beginning of network literature. Thus, the traditional system of copyright and neighboring rights, based on the balance of interests between authors and publishers, cannot achieve its legislative intent in this area. The various ways of dissemination and utilization of works, especially the development of derivatives, make the creation and value of works more dependent on the power of the network platform, and at the same time strengthen the dominant position of the network platform in the literary creation market. The nature of the agreement between the online literature platform and the author, and the legal relationship established by its nature, cannot be determined only by the wording of the agreement provisions, but should analyze the agreement provisions and the spirit of relevant legislation, and combine transaction habits and good faith Principles, define the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its terms, and clarify the rights and obligations of both parties, and the assumption of external liability. 4. determine the relationship between rights and obligations related to online writing based on the nature of the contract. As mentioned above, as a type of work, online literary works are no different from the "written works" defined in the Copyright Law. The difference lies only in the changes in the communication carriers and channels of the works, but it is this change that triggers the works. The changes in the creation and operation mode make the existing copyright system have an embarrassing situation in some cases: although there are no obvious obstacles to its application, however, the result of its operation will go against the original intention of the establishment of the system, and it will not achieve the expected effect, such as protecting the rights and interests of authors, promoting the creation and dissemination of works, and so on. [] But on the other hand, the law's adjustment of social relations cannot be used to change the existing rules and arrangements by using the method of treating headaches and feet. Although, as mentioned earlier, both the feudal privileges of the 15th century and the capital privileges of today's society have enabled publishers/online platforms to gain market power, the feudal privileges and capital privileges as sources of market power operate in very different ways. The latter, while also creating an imbalance in the allocation of resources, is the result of the spontaneous action of the market itself. For the correction of this result, the law, as a public power, should try to restore the market's ability to regulate through the correction of rights and obligations. [] As far as the "Copyright Law" itself is concerned, since it is still a traditional work of text, according to the traditional theory and practice of copyright law and intellectual property law, it is unnecessary, impossible, and almost never based on the same type of work., Only because of the difference of the carrier to make different analysis or arrangement. Under the circumstances of the ever-changing business model in the new era, this paper advocates combing the legal relationship in the agreement, determining the nature of the agreement on the basis of the essence of rights and obligations, and dealing with the validity of the relevant provisions, the agreement is not agreed or the agreement is not clear, so that the "old" system can be used to solve new problems. The economic analysis of copyright law is one of the explanatory contents of the new institutional economics arising from the transaction cost as the starting point, and its analytical logic, in short, is to reduce transaction costs and realize the effective allocation of resources by the market through clear rights boundaries and transaction rules. [] And the increase in transaction costs is often triggered by information asymmetry, opportunism, etc., which leads to market failure. [] According to the market priority theory [], when there are market failures associated with them, justice should make the market an effective mechanism for the allocation of resources again by reducing the influence of these factors. When this theory is applied to the related issues of network literature creation agreement, it is to sort out and identify the rights and obligations of both parties to the contract. Although the online writing agreement is titled "Copyright License/Authorization Agreement" or "Work Use Agreement", in essence, it does not comply with the provisions of the Copyright Law and other laws for related contracts, so it is an atypical contract., That is, nameless contract. The rules for atypical contracts shall be determined in accordance with the content of the contract, the relationship between the terms of the contract, the principle of good faith and trading practices []. Therefore, for these agreements, in addition to the wording (including the literal meaning of the title), determine the essence of the contract, and determine the various rights and obligations based on the above factors. (I) identify the substance of the contract to determine the internal legal relationship. Determining the relationship between rights and obligations from the perspective of the substance of the contract is first reflected in the understanding of the legal relationship between the network platform and the author. For example, in a pure UGC model, the web platform signs a user usage agreement with the author. As mentioned earlier, the author maintains a relatively complete copyright in this agreement. Based on the practical needs of online publication, the author will give some rights, such as submitting manuscripts, which means that the author has permission to the right of information network dissemination and reproduction in specific ways. The author's act of clicking "I have read and agree to the agreement" constitutes a default to the terms of the contract. However, according to general trading habits, this concession should be extremely limited and should be limited to the need for online publication. If the terms of the user agreement form a license or transfer of the main rights of the copyright, it can no longer be considered as a user agreement, but should be considered to constitute a copyright transfer or license contract. For another example, sometimes the name of the agreement is "authorization contract", but in fact it excludes the possibility of the author exercising the copyright during the entire duration of the copyright, and authorizes the network service provider to exclusively license the property rights of its works to the network within 50 years of life and death. Platform, it should be considered that a copyright transfer contract has been formed. When the apparent user agreement is essentially in the nature of a copyright license or transfer contract, the provisions of the Copyright Law on the right to remuneration of the copyright owner [] should be invoked. When the agreement does not agree on the contractual consideration, the author should not be considered to have tacitly licensed or transferred the copyright in a free manner, but should be interpreted otherwise for the relevant provisions. This situation can be dealt with in the following ways: the first way is to find that the contract is not established on the grounds that the contract lacks the main clause []. Whether according to the general principles of debt law or the provisions of copyright law for copyright licensing or transfer contracts, the payment consideration clause is the main clause of the contract. According to the principle of good faith and trading habits, in the absence of clear evidence that the author has made a clear waiver of the right to remuneration when agreeing to use the agreement, the main terms of the contract should be found to be missing, so that the contract is not established. The second way is to invoke the format contract specification processing. Since the user's use agreement is generally presented in the form of text displayed in advance on the web page or client, the user has only the right to choose whether to agree as a whole, thus satisfying the constituent elements of the format contract. At this time, the lack of a consideration clause in the licensing or transfer of copyright can be found to be invalid for the failure to follow the principle of fairness and exclude the main rights of the other party as stipulated in the Contract Law, and an explanation that is not conducive to the contract provider, the operator of the network platform. In addition, the mere presentation of the relevant provisions in bold type is not sufficient to satisfy the requirement to indicate the relevant provisions. The third approach is to characterize the absence of a remuneration clause as a revocable, modifiable contractual clause resulting from a material misunderstanding. Since the right of rescission of a contract is a right of formation [], the author may choose for himself whether to effect the licensing and transfer of copyright with the payment of consideration, or to revoke the agreement. This scheme may be more inclined to maintain the security of transactions and facilitate transactions that use works. (II) determine the relationship of external rights and obligations on the basis of the nature of the agreement. Although the contract is relative and the validity of the online writing agreement is only binding on the rights and obligations of both parties to the agreement, the characterization of this agreement may still have an impact on the external rights and obligations of both parties to the agreement to a certain extent. The more typical situation is the application of the safe haven principle. The purpose of the safe harbor principle is to exempt the network platform from the heavy general review obligation, so that it can get rid of the general tort liability when the user's behavior infringes the rights and interests of the third party, and only bear the responsibility of review and deletion when receiving the notice of infringement, and bear joint and several liability when failing to fulfill the obligation of deletion. [] For the infringement of the author of online literature-generally the author's work infringes the copyright of others-the online platform will generally invoke the safe haven principle in order to avoid liability. When the network writing agreement is not characterized as a user agreement, the safe haven principle has no room for application. At this point, the network platform operator may be jointly and severally liable because of its position in the agreement-such as the transferee of rights or the creative principal of the work. This is not only based on the general principle of the compatibility of rights and obligations, but also related to the purpose of the safe haven principle. When the website forms a copyright license and transfer relationship with the author, the author is no longer just a user of the website, and the website is no longer a network service provider (ISP), but may become a content provider (ICP), thus being responsible for the content provided by himself. In particular, if the network platform and the author make an agreement on the copyright of future works, which makes the author bear the obligation of continuous contribution to the website within a certain period of time, the website has the right to substantially control the content of the works, even when the author uses the pen name to restrict according to the above, or arranges different authors to create the same work or series of works with the same pen name, or when the website pays the author according to the amount of work completed, under the condition that other conditions are met, it can be considered that the two are equivalent to forming a labor or labor relationship. When a labor relationship is formed, the author's tort liability shall be determined according to the circumstances of the damage caused by the relevant labor service, and shall be borne by the person receiving the labor service, that is, the operator of the network platform. When the labor relationship is met, it may constitute a job work stipulated by the copyright law and shall be handled in accordance with its provisions. If the network platform has almost complete control over the author's creation, such as issuing instructions or modifying the style and content, it can be recognized as a legal person's work, and the network platform operator shall bear the responsibility. Conclusion To sum up, when the traditional copyright object of written works is used as the carrier of the network, and thus the author uses a business model that is completely different from the past, the nature of the legal relationship and the relationship of rights and obligations between the two parties cannot be determined only by the wording and appearance of the agreement between the author and the network platform. It is necessary to study the essence of the relationship between rights and obligations determined by the provisions of the agreement, analyze the agreement provisions and the spirit of relevant legislation in accordance with the copyright Law, the contract Law and other relevant laws and regulations, and combine the trading habits and the principle of good faith to determine the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its provisions, and clarify the relationship between the rights and obligations of both parties. And the external liability and other matters. Article 1 of the Copyright Law [] Mao Xiang. Application of Market Priority Principle in Intellectual Property [J]. Journal of Chongqing University (Social Science Edition),2018,24(06):157-168. [] Cui Guobin. Criticism of Intellectual Property Judges' Law-Making [J]. Chinese Law Science, 2006(01):144-164. [] Eric Frubberton, Rudolf Reichert. New Institutional Economics-A Transaction Cost Analysis Paradigm [M]. Shanghai: Shanghai Sanlian Bookstore, Shanghai People's Publishing House, 2006:54 [] Liu Dahong. On the principle of market priority in economic law: connotation and application [J]. Law and Business Studies, 2017,34(02):82-90. [] Han Shiyuan. General Theory of Contract Law (2nd Edition)[M]. Renmin University of China Press, 2011. P73 [] Articles 10 and 24 of the Copyright Law [] Han Shiyuan. General Theory of Contract Law (2nd Edition)[M]. Renmin University of China Press, 2011. P115 [] Han Shiyuan. General Theory of Contract Law (2nd Edition)[M]. Renmin University of China Press, 2011. P244 [] by Cui Guobin. Copyright Law. Principle and Case [M]. Peking University Press, 2014.P753

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