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

Published:

2021-12-22

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. The Relationship between the Creator and the Platform of 2. Network Literature The exercise of copyright caused by the change of (I) carrier is more dependent on the platform Many scholars have studied the special problems faced by traditional literary and artistic works in the Internet age, which will not be repeated here. The focus of this article is that when the main form of communication of literary works has shifted from paper publishers to online platform operators, the exercise of copyright and related rights is gradually becoming more dependent on the platform, and the dependence of works and authors on the platform is far greater than its dependence on publishers in the past. The strengthening of this dependence is first and foremost technology-related. Since online reading is not based on the spread of tangible copies, the copyright system that originated in the printing era is constantly being compressed in the new era. [] The discussion of copyright issues in the Internet age often starts from the convenience of infringing copy and dissemination. In addition to the "safe harbor principle", which has received more attention, it also produces research on technical protection measures (TPMs) and anti-circumvention legislation. This is also one of the main amendments to the copyright law that has just been announced. The formation of technical protection measures is almost impossible to achieve in the absence of the network platform. In addition, when the existing copyright specific system is applied to network literary works, it must also rely on the relevant functions of the platform to be realized. Two examples are given here. The first example is the application of the concept of "distribution" and the principle of "exhaustion of rights", which in the age of digital networks depends on the functionality of the platform. Exhaustion of rights means that the copyright owner has no right to control the re-transfer of the original or authorized and legally produced copy of the work after the first sale or gift to the public with the permission of the copyright owner. [] This principle is based on the tangible nature of the copy and the real right of the work carrier. The object of exhaustion of rights is a specific copy of the work, so there is no room for application in general online distribution. [] In the context of digital networks, the boundary between "transfer of copies" and "copying" has almost disappeared. In this case, the transfer of copies protected by the principle of exhaustion of rights must be expressed as the creation of new copies and the deletion of old copies. This kind of operation, in addition to effective technical protection measures, is almost impossible to achieve. [] In order to achieve this function, online literature platforms often no longer provide any copies that can be disseminated separately from the system of the platform itself. The work can only be read online with a specific account, or by using offline copies downloaded in advance on the mobile client. These offline copies are often encrypted, so they cannot be transmitted by the user, nor can they be read by different account subjects on the same device. This new way of dissemination of works once led to the study of "browsing" behavior in copyright theorists, leading to the concept of "right of contact. [] Although it is still controversial whether the "right of contact" can be a separate right, or just a form of expression of the right of reproduction, in fact, for the special form of online literary works, "do not get any copies" The browsing method has indeed become the mainstream. And this way of communication can only be carried out through the network platform. The second example is related to the protection of the personal rights of authors. The Copyright Law and related judicial interpretations allow the public or other subjects to reprint published works or fragments of works under certain specific circumstances, but these reprints do not harm the personal rights of the author. As a prerequisite, in particular, requirements such as the identification of the author are made. [] In order to promote individuals or their works, some authors often indicate in their own articles, allowing others to reprint their works under the premise of indicating the source. However, in the form of UGC, when online literary works are reprinted, their author information is often lost or deleted "intentionally or unintentionally. In the professional network literature platform, the identification of reprint and authorship is realized through a unified application program interface (API) and code protocol. This makes the reprint of the article from the past simple copy-paste, into a more advanced social network (SNS) interaction, the reprint of the article is generally through the network platform to provide a "share" button, sent to other platforms that support the same protocol, and automatically indicate the author and the source of the article. Under this mechanism, it is almost impossible, at least inconvenient, to delete authorship information. The establishment of this mechanism depends not only on the realization of the technology of the specific network platform itself, but also on the establishment and promotion of the relevant standards of the network literature platform industry. In addition, this mechanism also plays an important role in preventing other websites from evading tort liability through the "safe haven principle. The dependence of network literary works on the network platform is also reflected in the dissemination and utilization of works and the demand for resources and capital. From the perspective of resources, it is mainly related to the dissemination and creation of works. At present, the number of online writers in China has reached tens of millions [], while the number of readers has exceeded 0.4 billion. The huge number means that the promotion of authors, especially new writers, is more difficult, resulting in the "2-8 effect" of online writers in terms of income. [] However, the huge amount of data also means that it is possible to analyze the author's style and readers' likes and dislikes through big data, thus enabling the network platform to help readers quickly match articles they may be interested in through algorithm recommend and other means, and enabling the author to anticipate the market when creating so as to better design the writing content. From the perspective of capital, it is mainly related to the use of works. With the development of the cultural industry, the proportion of the development of literary derivatives in the whole literary industry is increasing. [] The main form of this derivative is the development of related film and television works and cultural and creative products. These developments have strong capital-driven characteristics and require significant capital support, while requiring a certain amount of output to spread risk and cost. In this case, the network platform not only reflects the advantages of its resource integration, but also provides the possibility for this kind of development. In addition, the current development of literary derivatives often uses copyright pledge financing to solve the funding problem [], and network platform operators, as professional intellectual property operators, are easier to form scale and comparative advantages in these jobs. The dependence on the platform has produced the result of the unity of opposites in two aspects: on the one hand, the network platform has been growing, and its role in the creation, dissemination and copyright utilization and protection of works has become increasingly obvious; on the other hand, the growth of the network platform has gradually established a monopoly position in the market, especially in the relationship between the author and the network platform operator, The author group is increasingly in a disadvantageous position. As a result, the relationship of interests, rights and obligations between the author and the dissemination, which has been established for tens of hundreds of years, but has not yet been stable, has been broken again. (II) interests and rights relations are broken From the perspective of the historical evolution of the copyright system, the "copyright" as a privilege originated from the development of printing and the rise of the specialized publisher industry. The modern copyright system, on the other hand, is due to the rise of the author's right, the game of interests and the balance, and at the same time relying on the development of the theory of private rights during the bourgeois revolution [], and finally after more than 300 years of establishment of the author's right as the core of the modern copyright system, as well as the communicator's right as the core of the neighboring rights system. The debate between the author and the online platform, whether it is the cause or the focus of the debate, is similar to the dispute between "author rights" and "copyright" hundreds of years ago. From the appearance, the current network writing protocol has no obvious flaws in terms of form or from the perspective of the authenticity of meaning. But objectively, from the perspective of the ownership of rights and the distribution of benefits, the author group is very dissatisfied with the content and results of these contracts. This dissatisfaction not only means that the needs of a certain interest group cannot be met, but also may lead to the failure of the existing relatively stable contract and negotiation mechanism based on the expectation and distribution of interests. From the perspective of benefit expectation, under the mode of free reading and membership fee, the source of website income does not point to specific works, let alone specific authors. This is not a big problem in the paper age. The era of paper media is generally characterized by "buy the manuscript first, then publish it", and the commercial risk is borne by the publisher. Although the income of newspapers and periodicals based on accompanying advertisements does not point to specific authors, for specific publications, in a certain period of time, the circulation and other factors that affect advertising revenue are relatively certain. At the same time, a set of relatively stable standards have been formed within the industry for reference. Therefore, the remuneration model of a particular publication based on its own size, based on the number of words, is both predictable and acceptable to the author. However, in the Internet age, the model of "publish first, then divide" is adopted, and the author's income from the work is unpredictable. The ability of property rights to regulate the allocation of resources through the operation of the market is based on as complete information as possible and as predictable as possible, otherwise it will inevitably lead to the creation of a large number of incomplete contracts, higher transaction costs, and market failure. In the Internet age, this decline in predictability is not a subtle change, but a systematic one, which is related to the distribution of benefits that can be generated subsequently. This is most prominent in the operation of derivatives of works. In the use of traditional works, publishers or network platforms can only enjoy publishing rights, information network dissemination and very limited modification rights based on agreements and legal regulations. The author almost retains most of the copyright, especially the right of deduction, which is mainly manifested in the right to adapt the work into film and television works. When a demand for derivative creation arises, the producer generally contacts the author and obtains authorization. However, in the era of OGC and PGC, the proportion of derivatives in the whole work utilization has increased, which makes the network platform hope to control the vast majority of copyright rights in their own hands. Therefore, when the online writing agreement is concluded, many platform parties will require the author to license or even transfer the copyright and other rights of existing works or future works, and even bring into control the rights that are exclusive to the author under the copyright law-the personal right of the work (mainly the right of signature). This may result in serious dissatisfaction among the author community when the benefits of derivatives operations are much greater than the author originally expected, especially when the benefits are disproportionate to the completion of the online reading share that the author receives based on the writing agreement. But from another point of view, the development of derivatives is closely related to risk. Still taking film and television adaptation as an example, among all online literary works, works with adaptation value may only account for a small number. At the same time, the production of film and television works, in addition to the work itself, also requires a lot of capital and other resources to intervene, and faces huge investment risks. On the one hand, the author community cannot carry out this work, on the other hand, the author generally cannot bear the risks associated with it. Network platforms are often packaged to obtain authorization to spread the risk. When entering the era of capital operation [], this situation becomes even more an inevitable result. In order to obtain investment, online platforms often use copyright as a financing tool in batch form and pledge to obtain funds. In this case, if the network platform operator cannot obtain the complete copyright, or needs to sign a peer-to-peer agreement with individual authors, the development of large-scale risk-controlled derivatives is basically impossible. From this perspective, the aforementioned reliance on the platform is further strengthened. The conflict of interest between authors and publishers hundreds of years ago resulted in the complete inversion of the publishing right system to the author's right system and the establishment of a modern copyright system with the private civil rights of creators as the core, but at the same time, through the regulation of the neighboring rights system, contract theory and market forces, the interests of publishers not only did not suffer too much blow, but also promoted the prosperity of the literary publishing industry, it promotes the realization of the value of the work and the win-win situation of the author and the publisher group. The most important reason is mainly due to the establishment of a copyright rights system with property rights as the core, which makes rights and obligations clear and the power of the market to allocate resources. This is consistent with the economic theory of property law and the economic analysis of intellectual property law. This paper does not attempt to predict the direction and development results of this conflict, but still advocates that the original economic intention of the copyright system should be realized through the clear division of rights and obligations-to realize the effective allocation of resources through the market and promote the development of social culture.

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