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

Published:

2021-12-21

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. This series of articles defines "online writing agreement" as an agreement between online literature authors and online literature platform operators on issues such as the creation, utilization, ownership and licensing of online works, and distribution of benefits. When literary creation entered the Internet age, the controversy over the distribution of interests between authors and communicators, which occurred hundreds of years ago, arose again. Regardless of form and content, history repeats itself in almost the same way. The difference is that the market power of publishers at the beginning came from feudal privileges [], while today's network operators come from the advantages of capital and resources. This "five-five break" incident [], which occurred in early May 2020, is an outbreak of this debate, which is caused by the dissatisfaction of the online author community with the online platform writing protocol. From the appearance of the object of rights, there is no obvious difference between network literary works and traditional written works, and the term "network" seems to only define a carrier and communication channel of these works. Therefore, it seems that the traditional theory of copyright can be used to deal with the related problems, supplemented by the new copyright system such as the right of information network dissemination. However, from the perspective of the creation and dissemination mode of network literature in recent years, this idea has been obviously inadequate. The traditional online literature creation platform mostly exists in the form of online literature community. The author publishes his works in special or comprehensive forums. The online platform only provides software support and extremely low level value-added services. However, from the current creation and dissemination of online literary works, the following model is basically adopted: the author and the online literature platform agree on the creation, ownership, and use of the work in the form of a contract, and publish the work to the online literature platform. The copyright and neighboring rights arising from the work are exercised by the platform and the work in accordance with the contractual agreement between the two parties, the most important of which is the ownership and licensing of the copyright, as well as the distribution of the proceeds arising from the dissemination of the work between the platform and the author. The dispute between the two sides also arises from the conclusion and performance of these contracts. On the surface, these contracts have not deviated from the theoretical and institutional framework of the classic civil law, contract law and copyright law, and there are no problems such as defects in meaning from the appearance. However, these contracts have led to complex disputes between many authors and platforms, and have spawned disputes about author rights protection, platform responsibilities, and overlord clauses. On the one hand, the author group believes that its legitimate rights and interests have been improperly deprived, and the platform uses its knowledge advantage and capital hegemony to squeeze the author's interests. [] On the other hand, in the process of spreading literary works on the Internet, the formation of the advantages of the network platform is both necessary and inevitable. How to balance the interests of both sides, protect the rights and interests of authors and communicators, and guide the healthy development of this new literary form is a problem that needs attention. This paper focuses on the contractual nature of online writing agreements and related legal issues. Network writing agreements are mostly nameless contracts, which appear in the form of listing the rights and obligations of both parties, and the actual legal relationship is often inconsistent with the wording of the contract. For example, some clauses appear in the form of "copyright license", but their essence almost constitutes the transfer of copyright. Some clauses define the work as "user-generated content (UGC)", but the platform's control over the work is much greater than this. Some clauses define the author's requirements for creation, the ownership of rights and obligations, and even make the two constitute a de facto labor or labor relationship. In addition, there are some contents in these contracts that are contrary to the copyright law and may be invalid. [] Therefore, this paper attempts to analyze the legal problems related to the copyright contract nature of the network literature platform, and tries to put forward a solution angle. The Difference between 1. Network Literature Creation and Related Traditional Formats The Combination of (I) Network Literature Creation and Traditional Publishing Mode The network literature industry has two ancestors, the first is the traditional book, newspaper and publishing industry, and the second is the traditional network literature creation existing in the online literature community. In the primary form of traditional online literature creation, works exist in the form of "user-generated content" (UGC). Authors publish works in special or comprehensive forums. Online platforms only provide software support and very low level value-added services. The result of the continuous development of this model is the emergence of a group of "writers" who specialize in network literature writing, and some network platforms have gradually evolved into specialized network service providers for the publication and operation of network literature. and began the exploration and innovation of a new business model. At this time, online literature entered the era of "professionally generated content" (PGC) and gradually formed an industry. At the same time, the relationship between the author and the online literature platform has also been transformed from a relatively loose and individual "user-service provider" model to a copyright licensing and transfer model, and a more complex and complex set of commercial creation and operation has been formed. system. [] With the development of these business models, the online literature platform finally entered the "professional production content" (OGC) model and formed an industry. Under the PGC and OGC models, online literature creation began to move closer to the business model of the traditional book publishing industry. The traditional publishing industry includes book publishing and newspaper publishing, which is mainly divided into two categories: submission and submission of manuscripts in terms of the order of completion of manuscripts and the formation of publishing agreements. Contributions are generally based on work that has already been completed. In addition to dealing with it in accordance with the relevant provisions of the copyright Law, in book publishing, the author and the publishing house generally sign a more detailed book publishing contract to agree on matters related to copyright and remuneration; in the case of newspapers and periodicals, the author's contribution means that he has agreed to the format contract determined by the newspaper agency in documents such as "instructions for soliciting manuscripts. In the case of manuscripts, newspapers and periodicals often sign a "special columnist cooperation agreement" with the author, which stipulates the frequency and content of the author's contribution in the form of contractual rights and obligations. The network writing protocol is generally used in a similar way to the above two. From the perspective of the current creation and dissemination of online literary works, the following model is basically adopted: the author and the online literature platform agree on the creation, ownership, and use of the work in the form of a contract, and publish the work to the online literature platform. The copyright and neighboring rights generated by the work are exercised by the platform and the work in accordance with the contract, and the income generated by the dissemination of the work, distribution between platform and author. The Payment and Profit Model Innovation of (II) Network Literature Creation In the initial stage of network literature creation, the profit model of the network platform is relatively simple, and its basic mode of operation is to provide free publishing and reading services to authors and readers as a network service provider (ISP). [] In this model, there is no clear boundary between the author and the reader, and the revenue of the website platform mostly comes from advertising revenue and derivatives revenue, while some more mature websites may charge users a fee and provide some limited value-added services. In the traditional publishing industry, there are generally three ways for publishers to pay authors:[] Newspapers and periodicals generally adopt a one-time payment model, which is generally based on the number of words, while book publishing generally has two types of remuneration system and royalty system. The for-profit model of publishers generally adopts two parallel methods, one is to sell for profit, that is, to sell printed copies of books, as well as to distribute newspapers and periodicals, and the other is to rely on the reputation of the publication itself, such as advertising revenue, service provision or brand operation. [] In addition, there is the self-funded publishing model of books, which is not discussed in this article. After entering the era of PGC and OGC, the profit-making model adopted by the online literature platform is basically the product of the integration and development of the traditional publishing industry and the profit-making model of UGC websites. Literary websites generally use a paid reading model or a free reading model, or a combination of the two. [] There are mainly two types of paid reading. One is the individual paid reading mode, that is, readers pay individually to obtain the reading rights of a specific work or the works of a specific author, which is equivalent to "buying" a certain work. The other mode is the membership fee mode, that is, the platform sets all or part of the article or some chapters of the article as non-open reading rights, users get a package of reading rights for a certain period of time by paying a regular fee. In the free reading model, the platform continues the UGC era, with advertising revenue or derivatives development-based for-profit methods. The innovation of the profit-making mode of the network platform has led to the change of the distribution of interests between the platform and the author, which has led to some debates. Under the single-read payment model, the platform side will generally derive its income from a single article or author, and after deducting the necessary operating costs, it will share with the author, and the dispute is generally limited to different opinions on the share ratio. However, under the membership fee mode and free mode, since the income of the website does not point to a specific author or work, its income distribution method has become the focus of the fierce dispute between the two sides,[] which is also one of the causes and focuses of the "five-five break-off" incident. [1] Wu Handong. Research on the basic issues of intellectual property rights (sub-thesis)[M]. Beijing: China Renmin University Press. 2005. Sub-thesis [2] Chen Qian. Read the "55 break more section" truth: the net text has changed, the chariot changed the string to open a new war [EB/OL].http://finance.sina.com.cn/wm -05-18/doc-iirczymk2231906.shtml,2020-May 18, 2020. [3] Kexin Wenchuang. 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