Research On The Legal Regulation Of Collective Management Acts Of Copyright

As a licensing bridge connecting copyright owners and users,the collective management act of copyright is not only a good design for realize large-scale copyright licensing,but also an important prerequisite for promoting works to spread widely.However,the good realization of the licensing function and value aforementioned is not only benefited from the private autonomy of the copyright righters,but also rely on the effective implementation of the regulation on collective management acts of copyright.The reason is mainly because there is a natural tendency to abuse dominant position in the market while copyright collective management organizations are exerting functions of the aforementioned system.In fact,in the judicial practice of China,collective management organizations have acts that require high royalties,refuse to license,and other abuses of market dominant position.In addition,due to a fact that the establishment of collective management organizations of copyright in China is largely a result of government support and policydriven,the excessive dependence on the “Administration” path not only fails to fully exert the important functions of effectively regulating collective management acts,but also strengthens the market dominant position of collective management organizations to a certain extent.In this regard,the realization of the legal regulation of the collective management acts of copyright is an important part of solving the above problems of the collective management organizations of copyright in China.It can be seen that there is of great theoretical and practical value to clarify the justification basis of regulation on collective management acts of copyright and realize the localization and perfection of regulation on collective management acts of copyright in China.Therefore,in addition to the introduction and conclusion,the specific analysis and argumentation of the above issues are divided into six chapters.Chapter ? is an overview of the basic issues of regulations on collective management acts of copyright.First,in the basic concept of collective management act,the collective management act has characteristics of “centralization”,“standardization” and “intentionalization”.It should not be positioned as a legal act with trust nature,but should be interpreted as a special act of entrustment in the legal sense.In addition,on the one hand,a collective management act not only has important economic functions and incentive values,but also has different social and cultural functions;on the other hand,a collective management act is different from both a direct licensing act and the corresponding proxy behavior of rights defense.Second,in terms of the operational mechanism of collective management acts of copyright,the de jure value orientation of collective management act should be based on the interests of rights holders.The degree of trust of copyright owners,the development factors of business models and the factors of technological change will also affect the effective operation of collective management acts of copyright.Third,in terms of the implementation basis of the regulations on collective management acts,the implementation of copyright law and anti-monopoly law has a certain degree of commonality on idea.The market power contained in the collective management organization of copyright comes from both the legal monopoly property of the copyright right itself and the specific licensing mechanism of collective management acts.Of course,a series of abuses of rights by collective management organizations of copyright also have harmful consequences that affect the licensing transactions of copyright and undermines the fair-competition market order.Chapter ? specifically examines and analyzes the legitimacy of regulations on collective management acts of copyright from pluralistic perspectives of legal philosophy,civil law,economics,public policy and copyright law.First,under the perspective of legal philosophy,the legal regulation of collective management acts of copyright not only conforms to the basic implication of Distributive Justice,but also meets the specific requirements of Corrective Justice.Secondly,in the context of civil law,on the one hand,the legal regulation on collective management acts of copyright is not a violation of the principle of private autonomy,but aims to better protect the legitimate interests of right holders,as well as a fair and competitive market order;on the other hand,the legal regulation on collective management acts of copyright not only conforms to the supposed meaning of the principle of prohibiting the abuse of rights,but also meets the legislative purpose of the Copyright Law and the Market Competition Law.Third,in terms of economics,the legal regulation on collective management acts is in line with the need to inhibit the opportunism of collective management organizations.Fourth,in the context of public policy,the legal regulation measures adopted for collective management acts need to follow the basic concept of “giving full play to the fundamental role of market in resource allocation and better playing the role of the government”,so as to collectively promote the effective operation of collective management acts of copyright.Fifth,under the internal perspective of copyright law,to realize the balance of interests between copyright holders,users and the public,it is necessary to effectively regulate the collective management acts in the institutional arrangement.Chapter ? is a sample survey and comparative analysis of the United Kingdom,the United States,Germany,Japan,and Taiwan(China).First,the collective management system of copyright adopted by the UK is a competitive organizational model and does not limit the specific types of collective management organizations.In the implementation of the regulations on the collective management acts in the UK,the clear establishment of the Copyright Tribunal is the main feature of its institutional arrangements.Of course,the UK's legal regulation of collective management acts also carry the general characteristics of implementing the relevant EU legal system.Second,the organizational model of “free competition” and the “relatively open” organization type are also adopted by the United States in terms of the basic positioning of the collective management system of copyright.Specific to the implementation of the regulations on the collective management acts,on the one hand,the “reconciliation agreement” adopted by the United States can effectively respond to and reconcile the interests requirement of different industry entities according to the continuous development of technology and market;on the other hand,the judicial application of anti-monopoly regulation adopted by the United States also greatly complements the lacks of the “reconciliation agreement” and further improves the judicial protection of the market competition order.Third,a model selection of collective management system of copyright in German has experienced the evolution from “free competition” to “legal monopoly” and then to “factual monopoly”.There is not only a unique hierarchical authorization mechanism in German,but also a dispute resolution mechanism of the Arbitration Commission.In addition,Germany also has a relatively complete special regulatory path for copyright collective management,as well as a more operational regulation system of competition law at the EU level.Fourth,Japan has realized an effective transition from a monopoly model to a competitive model in the organizational model of collective management acts of copyright.On the one hand,the special administrative supervision regulation implemented by the Japanese Ministry of Culture and the quasijudicial administrative regulation implemented by the Fair Trade Commission have institutional advantages that cooperate and complement with each other;on the other hand,for the anti-monopoly regulation that collective management acts exclude competition,Japanese courts has a clear judicial attitude and is also showing a development trend of continuously strengthening the regulation intensity.Fifth,Taiwan(China)has adopted a moderately regulated competition model and a dispute resolution mechanism for rate mediation.In addition,in the implementation of the regulations on collective management acts of copyright,the dual regulation path of copyright law and competition law adopted by Taiwan(China)has played a good regulatory role of reasonable regulation and effective connection.Chapter ? investigates the status quo of the regulation on collective management acts of copyright in China.First of all,the collective management system of copyright in China not only has specific characteristics of legal monopoly,non-profit,and strong color of administration,but also has a certain degree of irrationality in terms of legislative and judicial practice of collective management acts.Secondly,in the approach analysis of the regulations on collective management acts of copyright in China,China's collective management organizations of copyright not only has the legal monopoly status in the system norm,but also has the dominant market position in the level of market competition.In addition,the administrative relief path stipulated in China's <Regulations on the Collective Management of Copyright> is difficult to effectively exert the corresponding system functions and values;and the implementation path of China's anti-monopoly regulation on collective management acts of copyright also lacks certain operability.Finally,in the implementation of regulations on collective management acts,there are problems of improper value cognition,unclear legal basis,unsmooth implementation path and insufficient supporting mechanisms in China.Chapter ? is about the specific options for the regulation on collective management acts of copyright.First,in terms of the ex-ante path of regulation on collective management acts of copyright,the monopolistic organizational model is an undesirable model scheme,while the “restrictive competition” organizational model is an essential dependence on and simple deformation of the “monopolistic model”.So a competitive organizational model should be adopted.Then,it is not appropriate to limit collective management organizations of copyright to “non-profit” organizational types,but to adopt more diversified and competitive organizational types.Secondly,in terms of the things-ongoing path of regulation on collective management acts of copyright,through an analysis of the advantages and disadvantages of the three different modes of royalty rate court,arbitration committee and mediation committee,it can be concluded that the solution of the royalty arbitration institution has relative superiority.Thirdly,as far as the ex-post path of regulation on collective management acts of copyright is concerned,compared with the implementation plan of “taking administrative regulation as the leading factor”,the implementation plan of “taking judicial regulation as the leading factor” is more reasonable in system.Chapter ? is the perfection of the regulation system on collective management acts of copyright in China.First of all,in terms of the institutional model of the regulation on collective management acts of copyright,China should not only adopt the organizational model of “effective competition” and the relatively free organization type,but also adopt a diversified copyright licensing method and further strengthen the legal obligations of collective management organizations.Secondly,in terms of the organizational structure of the regulation on collective management acts of copyright,first of all,it is necessary to further optimize the internal organization of collective management organizations in China,such as the establishment of corresponding supervision committees;second,the dispute resolution mechanism of the Copyright Royalty Arbitration Commission should be established as soon as possible;third,the functional convergence of the regulation subject of collective management acts of copyright shall be further optimized as well.Finally,in terms of the implementation path of the regulation on collective management acts of copyright,the first is to follow the implementation principles of anti-monopoly exemption,equal treatment,competition protection and classified application;the second is to further optimize the special implementation path of the regulation on collective management acts of copyright,weaken the administrative intervention in collective management acts of copyright,strengthen the monopoly supervision of the regulation on collective management acts of copyright,and further optimizes the relief channels of the regulation on collective management acts of copyright;the third is to further improve the anti-monopoly implementation path of regulation on collective management acts of copyright.On the one hand,it is necessary to fully strengthen the important role of anti-monopoly law enforcement agencies in the anti-monopoly public implementation of collective management acts;on the other hand,it is necessary to give full play to the advantages of path in the anti-monopoly private implementation of collective management acts.First of all,in the scope of application,it is necessary to explicitly list the anti-monopoly regulation on “collective management organizations of copyright” as a specific regulatory situation;secondly,in the type of application,it is necessary to adopt the method of “Enumeration + Summarization” to specifically stipulate the behavior performance of right abuse of collective management organizations;finally,in the judging criteria,it is necessary to reasonably distinguish the difference between the “rights monopoly” effect and the “market monopoly” effect of copyright collective management act,and then combine such judging factors as “alternative licensing method”,“difficulty in market access”,“comparison of different users' royalties”,and “the proportion of the royalties pricing and copyright owners' remuneration,comprehensively use the economic analysis and legal analysis method to determine whether the copyright collective management organization constitutes an abuse of rights in the antimonopoly sense.