Viewpoint | Research (III) 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. 3. network writing patterns and the nature of contracts that may be involved (I) typical contracts related to web writing A typical contract, also known as a named contract, is a contract that is regulated by law and given a certain name. According to the "Copyright" law, the copyright of a written work arises from the completion of the creation of the work and initially belongs to the author. Therefore, in the process of network writing, the author and the network platform are regulated by relevant laws and agreements. These agreements may involve the following typical contracts. 1. User Use Agreement At the beginning of the birth of network literature, the rights and obligations between the network platform and the author are restricted by the user's use agreement. This type of protocol is actually developed from the end user agreement (EULA) commonly used in computer software. There is no substantial difference between the author and the reader. They are both users of the network platform. The author and the reader use the system provided by the website to publish works or other "posts" that do not constitute works online as registered users ". Before users register to use the services provided by the website, the website uses a set of format contracts to regulate the behavior of users using the website to publish information. [] Except for the defining provisions and provisions related to network security, the website generally does not require an explicit license or transfer of copyright for the work or the copyright itself. The Site is licensed with very limited partial copyright rights based solely on the needs of the Site to operate. Some of these licenses are based on the provisions of the law or the agreement of the user's use agreement, such as online submission is regarded as the publication of the work, the right to republish the website, etc. But more, the use of the site for the work is based on the operation of the site should of course be allowed to act, such as information network dissemination, data backup for the need to copy the work. As for the creation of works, websites generally do not interfere, but emphasize that works must not violate the regulatory provisions of the law. At the same time, some websites may review the works published on the website in advance or later for the sake of unified theme and quality of the website, so as to publish or delete the works. Based on the user agreement, the author has complete copyright to the work. If the website intends to make further use of the published article, it must sign a special agreement with the author, thus turning to the copyright transfer or license agreement. 2, copyright transfer or license agreement. In order to make further use of the works, such as the collection and publication of the works or the change into film and television works, the website needs to sign a copyright license contract with the author for the works. In these contracts, the network platform obtains part of the right to use the work according to the agreement, such as the right to make changes, the right to compile, etc. However, as mentioned above, especially in the process of producing film and television works, the exercise of ordinary license or single power may not meet the needs of the integrity of the rights associated with it. Therefore, the network platform often tries to obtain exclusive or exclusive license, and obtain a relatively complete license of copyright property rights,[] and even requires the author to transfer the copyright property rights. In the process of using copyright for pledge financing, the transfer of all property rights of works is the most common practice. A copyright license or transfer is a succession of copyrights or rights. In order to obtain the original copyright, the network platform and the author sometimes sign agreements on the ownership of future works. The names of these agreements are often still "copyright authorization agreement" or "license contract", but in fact, they may form entrusted creation or even labor and labor relations. 3, entrusted creation agreement, network brokerage agreement or the formation of labor and labor relations. The validity and content of a copyright license or transfer contract are restricted by the copyright law. This restriction is mainly concentrated in two aspects: First, the creation of copyright begins with the completion of the creation of the work. Therefore, for unfinished works, because there is no grantable "Right", it is of course impossible to have a license or transfer contract based on copyright. Although judicial precedents recognize the binding force of these contracts [], they can only be based on the fact that the contractual obligation leads to the licensing or transfer of copyright as a contractual obligation to be performed after its creation. Second, according to Article 10 of the Copyright Law, the copyright rights that can be used for licensing or transfer are limited to the property rights of the works. [] Therefore, if the network platform agrees on the ownership of the complete copyright of the work produced in the future, it is likely to constitute a contract of commissioned creation. According to Article 17 [] of the Copyright Law, the copyright of a commissioned work is agreed upon in a contract and, in the absence of such agreement, belongs to the trustee, I .e. the author. In practice, the network platform and the author often agree that the copyright initially belongs to the network platform operator, so that the network platform can form the original acquisition of the complete power of the copyright. Different from the traditional commissioned creation, the network literature creation agreement often does not make a special clear agreement on the creation content itself, but only determines the number and frequency of contributions, the ownership of copyright and the distribution of benefits. At the same time, with the development of the industrialization of network literature, the related specialized profession arises at the historic moment, both network literature agent. The main work of the broker is not only to find trading opportunities and facilitate transactions for the author and the network platform, but also to undertake upstream industry-related work such as the determination of creative style, the selection of themes, the communication between the network platform and the author on the creative content, and the follow-up of the writing progress. Some of them are also responsible for the operation of works, author services, works publicity and derivatives development services. [] The development of the network literature creation industry has produced more complex agreements and operating methods. When commissioned creative agreements are combined with online literary brokerage agreements and are often fully controlled by online platform operators, groups of authors, especially small and medium-sized writers, sometimes argue that these contracts form labor or service relations in substance. In these agreements, the network platform often stipulates the number and frequency of the author's contributions by agreement, and agrees that the copyright originally belongs to the network platform. At the same time, it is agreed in the contract that the author should create in accordance with the content and style required by the network platform in the process of creation. These requirements are not explicitly stated in the contract, but are issued to the author through separate instructions during the performance of the contract. In particular, many online platforms have agreed on the use of the author's pseudonym. [] In addition to the traditional author writing under a pseudonym, there are also some special ways of application, such as prohibiting authors from making contributions to other subjects under the same pseudonym, for different works, authors should write under different pseudonym, or different authors should create under the same pseudonym, or even multiple authors jointly create the same work under the same pseudonym. In this case, the author is generally called "writer" in the industry, and this kind of creation also deviates from the writing mode with the author as the core in the traditional literary creation and turns to the production mode of industrialized works. Therefore, the author group believes that it has formed a labor or labor relationship with the network platform, and then advocates the relationship of rights and obligations related to labor security, labor infringement and job works. [] (II) network publishing mode and nature of publishing agreement As mentioned earlier, the network literature creation industry has experienced the development path from the traditional UGC mode to PGC and OGC mode. At the same time, these modes also exist in the current network literature creation. Therefore, it is necessary to sort out the nature of the network creation protocol in these modes. In the UGC model, the platform typically operates as an electronic bulletin board (BBS), an online forum, or an online community. In this mode, users publish articles on the website, and the platform is the channel for authors to publish articles. The relationship between the author and the platform is the relationship between the user and the network service provider. The protocol at this time is generally a user usage protocol. The author retains relatively complete copyright and is responsible for his own articles. For the author's infringement, the website can invoke the "safe haven principle". In the UGC mode, the further use of the work is extremely accidental. When the network platform wishes to make further use of the work, the agreement signed is generally a copyright license or transfer contract. In the PGC model, the author is generally a professional writer, the purpose of writing is to publish on the website, through the website traffic or revenue sharing, while seeking opportunities for the creation and use of derivatives of the work. Therefore, the website and the author will generally sign an agreement in advance on the use of the copyright of the work, and at the same time agree on the attribution of rights and the distribution of benefits for the interpretation of the work. These agreements may be commissioned creative contracts, or they may form copyright transfer and licensing contracts. For the creation and operation of derivatives, the author and the platform may also form an agency relationship (I. e., the platform acts on behalf of the author to exercise copyright rights) or a brokerage relationship. In OGC mode, the author's writing is generally to complete the tasks delivered by the platform and write according to the requirements of the platform, and the platform pays the remuneration according to the agreement. The agreement relationship formed at this time is relatively complex. Since under the OGC model, if the agreement is generally for works that have not yet been created or have not yet begun to be created, there is generally no copyright license or transfer agreement. Its agreements should be characterized as the aforementioned commissioned creation agreement, online brokerage agreement or the formation of labor and labor relations. [] Wang Yize. Coping with Copyright License Format Contract Expanding the Scope of Copyright Owner's Rights [J]. China Publishing, 2020(08):61-64. [] Come, Tucki. On the exclusive license of copyright under the network environment [J]. China Publishing, 2017(03):52-55. [] Shanghai Pudong New Area People's Court,( 2010) Pu Min San (Zhi) Chu Zi No. 424. [] Article 10 of the Copyright Law [] Article 17 of the Copyright Law Chinese Culture Newspaper. Integrating Resources to Build Industrial Chain Network Literature "Broker" Comes [EB/OL].http://www.ce.cn/culture/gd/201408/23/t20140823_3410259.shtml,2020年5月15日. [] Tang Li Han. Tianxia Ba Sings Victory to "Nine-story Demon Tower": Film Party Violates Authorship [N]. Legal Evening News, 2016-06-28 [] Lai Mingfang. How can online literature platforms and authors coexist and win-win [N]. China Press, Publication, Radio and Television News, 2020-05-14(005).

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