Dialogue New Media | Dispute over the Ownership of Self-Media Accounts and Legal Advice

In the era of short video, the media industry has undergone tremendous changes. Short video and live broadcast have gradually become new modes of communication, impacting the mainstream media. As a product of the mass media, reporters and hosts are always the most active groups in the media industry. Many media staff have also registered accounts on multiple self-media platforms, with the help of resources, fixed audiences and special advantages in daily work. Carry out short videos or live publicity related to their work or life, and gain a large number of fans and social attention.

The ownership of self-media platform accounts opened by staff using special identities and unit resources and the rational path planning in the future have become issues worthy of discussion. This article provides specific answers and suggestions on the attribution and transfer of stock accounts, the creation and specification of new accounts, and the legal risks and solutions of accounts.

Ownership and transfer of 1. stock accounts

(I) account attribution problem

In principle, staff members only have the right to use the personal self-media platform accounts that have been registered and are in operation, and have no ownership. The self-media platform account should be understood as a kind of "network virtual property". The creation of the account is based on the relevant service agreement checked and recognized by the self-media person in the network service platform, and the rights and interests of the self-media account created by the self-media person in the agreement are divided between the two parties.

Take the protocol of the main self-media platform as an example:

To sum up, the staff only enjoy the right to use the account number of the self-media platform, and when exercising the rights related to the network virtual property, they should also follow and follow the service contract signed with the platform party.

(II) account transfer issues

According to Article 20, paragraph 3, of the Code of Conduct for Webcast Marketing issued by the China Advertising Association in June 2020, "Anchors shall not transfer or lend their registered accounts to others for use in violation of laws, regulations and relevant state regulations." According to the Notice on Strengthening the Management of Live Broadcast and E-commerce Live Broadcast issued by the State Administration of Radio and Television in November 2020, "The live broadcast platform of the network show shall implement real-name management for network anchors and" reward "users. Users who do not register under the real name system cannot be rewarded, and underage users cannot be rewarded. It is necessary to ensure that the requirements of the real-name system are implemented through real-name verification, face recognition, manual review and other measures, and ban the reward function of underage users."

The account has strong personal attributes. It needs to be registered with personal identity, bound with real name system and used for personal use. It has no right to donate, borrow, rent, transfer, sell or otherwise permit others to use the account in any form. Therefore, even if the content released by the staff of the unit from the media platform comes from the materials, scripts and even other resources provided by the unit in their daily work, the account number is still only for their personal use and cannot be lent to the unit or enjoyed by the unit.

Creation and specification of new 2. accounts

In addition to the volume deposit account, if there is a situation where the staff of the unit registers a new account or registers an account on other platforms, it can also be considered to adopt appropriate special regulations or agreements to regulate such issues.

(I) make full use of the official account of the enterprise

For example, the "Enterprise" service has been launched on platforms such as Douyin and WeChat. Compared with personal accounts, enterprise accounts need to be bound with business licenses and provide corresponding qualification documents. While the threshold is raised, the tangible and intangible rights are also increased at the same time. Enterprises can quickly establish a brand image on the self-media platform and enjoy diversified functions involving commercial publicity and transaction payment. At the same time, they can also closely integrate corporate publicity with corporate norms and corporate internal management. For example, on the tremolo platform, a business license can authenticate two enterprise numbers. On the basis of the enterprise number, the employee number function, the sub-parent account number, etc. are newly introduced. As a result, the parent company and subsidiaries, local branches and employees can be included in the management scope of the enterprise number, which can not only achieve the overall publicity of the enterprise, but also regulate the use of scattered and chaotic personal accounts.

(II) to set up MCN agency to reach contract

MCN(Multi - Channel Network) is an industry model derived from the purpose of better linking content creators. Article 38 of the Code of Conduct for Webcast Marketing stipulates: "Webcast marketing anchor service agencies refer to specialized agencies (such as MCN agencies, etc.) that cultivate anchors and provide services for them to carry out webcast marketing activities." This is also the first time that the term appears in an official document. According to statistics, there are now more than 20000 such specialized agencies in the country, and at least 30 domestic radio and television agencies have transformed into MCN agencies. Through the establishment of MCN institutions can take more flexible ways to sign contracts with internal staff and external anchors, and make clearer and clearer agreements between companies and individuals on cooperation methods, cooperation content, distribution of benefits, constraints and liability for breach of contract.

Therefore, in the wave of short video era, we can actively explore diversified profit models and operation modes such as advertising revenue, live delivery, content production, copyright generation operation, account incubation operation, platform subsidy sharing, derivatives development, government business, etc. While enjoying the benefits, it also shoulders the social responsibility of promoting values and transmitting positive energy through media publicity.

Legal Risks of 3. Platform Accounts and Solutions

In order to ensure the control of the account, the enterprise or MCN organization may also choose to register the network platform account with the relevant information of its legal representative/specific employee, and hand over the account to the employee/anchor for use. This kind of operation management is not a wise move. First of all, the user of the account is not consistent with the registrant, which may not only violate the user service agreement and management rules of the platform side, but also may not comply with the "real-name system" principle required by relevant laws and regulations such as the Network Security Law, the Electronic Commerce Law, the regulations on the Administration of Internet Live Service, the regulations on the Administration of Network Audio and Video Information Service, and the measures for the Administration of Network transactions, once the company's legal representative changes, employees leave and other issues, the security risk of the account is inevitable.

From the network platform account type, characteristics and other comprehensive consideration, can be restricted and regulated through the following ways.

(I) sign a written agreement

Whether through the provision of labor services or through brokerage cooperation, a written document is required to agree on the division of rights, obligations and responsibilities between the individual and the company/platform during the cooperation process.

1. Labor contract

If you choose to sign a labor contract, the agreement should include the content of labor services, service period, labor remuneration, the rights and obligations of both parties, the attribution of relevant rights, liability for breach of contract, liability for breach of contract and other specific provisions.

2. Brokerage Contract

If you choose to sign a brokerage contract, you should make an agreement on specific issues such as cooperation arrangements, cooperation period, distribution of proceeds from business activities, rights and obligations of both parties, attribution of relevant rights, liability for breach of contract, liability for breach of contract, etc.

The two types of contracts have their own advantages and disadvantages, and can be selected and personalized according to the actual business situation and industry areas.

Name of (II) prominent unit

For the preparation of the self-media platform account and content and the operation and use of the account itself, there is a high degree of dependence on the individual user of the account, but the ability to continue production and the continuous heat cannot be separated from the team creation and the support of the resources behind it. Therefore, highlighting the name of the unit can weaken the personal image on the one hand, and on the other hand, it can be in an advantageous position when disputes arise. Although the account number may not be transferred or given in principle, in the event of a dispute, it is the more mainstream view in judicial practice to determine the ownership of the account number, except in certain circumstances. However, if the relevant platform account itself is created for a specific company's products or services, and the registered trademark name of the company/MCN institution is also applicable to the account name, and corresponding resources are invested in the operation and value enhancement of the account, it may be claimed that the rights and interests of the relevant account shall belong to the company/MCN institution.

(III) file management

The agreement of income distribution comes from the agreement between the two parties, and the unfair income distribution system is the root cause of the dispute, and once the dispute arises, the amount of liquidated damages is also a matter of concern. It is a reasonable system to formulate a reasonable income distribution ratio and default payment, which can not only guarantee the fixed income of both parties but also effectively reduce the default behavior, especially the default caused by the digging wall or vicious competition between MCNs.

Therefore, it is suggested to do a good job in file management within both parties, such as what kind of team the company/MCN organization has matched for the individual, what kind of work it has done every day, how much resources it has invested, how much value the individual has created for the company and how much heat it has brought, which can be quantified and recorded. During cooperation, attention should be paid to the preservation of data and evidence so as to provide evidence in case of disputes.

(IV) account revenue division

While considering the rich benefits brought by the account, the cost of account operation and the financial support behind it cannot be ignored. When dividing account revenue rights with employees/anchors, units often need to consider both cost and revenue. The cost includes all aspects of the stage background, special location, makeup clothing, lighting and sound, script design, and publicity costs provided by the work unit; the revenue needs to be quantified in terms of fan volume, reading volume, and live broadcast revenue. If the employee/anchor relies heavily on the support of the company or the company contributes more to the popularity of the account, they should enjoy a higher proportion of the share. On the contrary, individuals should share a higher proportion. For example, some MCN institutions directly link the benefit allocation ratio to the amount of live revenue, when the amount of revenue reaches 500000, the ratio is set at 5:5, if the amount of revenue is greater than 5 million, the individual's bargaining power increases, the ratio is naturally tilted.

(V) non-compete clause

The non-competition clause is a common clause in the labor contract, but with the current enterprise competition is not limited to the competition of capital, more to the competition of human resources, the scope of application of the non-competition is expanding, no longer limited to senior managers, senior technical personnel and other personnel with confidentiality obligations. For the anchor of the self-media platform, it can also sign relevant agreements, make agreements or commitments. For example, it can only be publicized on a certain self-media platform, and it is not allowed to engage in similar work on any platform within a certain period of time after the termination of the contract, and it is not allowed to open a new account without permission and will bear the corresponding liability for breach of contract.

With the rise of self-media and short video, especially after the addition of e-commerce to produce live-streaming with goods boom, self-media accounts to increase the intensity of the realization of the way diverse paths. At present, there are no very clear definitions and clear regulations on "account ownership" and "network virtual property" at the legal level. However, the reasonable division of rights and obligations among platforms, institutions and individuals is the premise and basis for sharing resources and common profits. Only when the three parties jointly follow the agreement and avoid risks can the development of self-media platform and the realization of commercial value go further.