Research On Copyright Non-voluntary Licensing System Under Internet Environment

The protocol architecture that connects everything on the Internet greatly improve the efficiency of information dissemination,which is a subversive revolution to the traditional communication technology,expanding the people's field of activity,strengthening the connection between people,and having a promoting effect for democracy,culture construction and economic transformation,especially the Internet has created a better storage and retrieval model,making the cultural products to be revitalized.However,while enjoying the technical dividends brought by the Internet,the original order of cultural communication is undergoing changes,the development of the Internet poses a huge challenge to the protection of copyright and law enforcement methods.Under the background of mass digitalization,the reproduction and dissemination of works are more convenient.The development of Internet technology has an impact on the theoretical presupposition and infrastructure of copyright law.On the one hand,there have been a large number of illegal acts of unauthorized use of works and a large number of illegal use of works that are difficult to define the legitimacy in the Internet environment,threatening the stability of copyright law.The traditional copyright licensing mechanism,implied licensing,collective management and other licensing methods appear to be inadequate in dealing with the massive licensing.The traditional fair use system,which is usually aimed at strongly controllable or the transmission resources through the transfer of real rights to achieve the use,but transmission resources under Internet environment can be spread by anyone beyond the location and scale,and at the same time,as for the protection of the copyright owner's technical measures,the space that the fair use principle can be applied is becoming smaller and smaller.On the other hand,the application of technical measures and contract protection form the copyright rules of private creation,and there is a conflict between the rules of private creation of copyright owners and the legal protection.Technical measures and contract protection can realize the private legislation of the right holder,and can lead to an absolutely unlimited protection of the right holder,so as to exclude the application of the limitations and exceptions system stipulated in copyright law,break through the scope of legal rights of the copyright law and obtain a kind of benefits beyond the legal provisions.Therefore,the corresponding checks and balances mechanism must be constructed to meet the users' demand for reasonable use of works.We should build the non-voluntary licensing system corresponding to the authorization licensing,the non-voluntary licensing system consisting of legal license and compulsory license has incomparable advantages on reducing costs of authorization,the protection of user rights and public interest,maintaining the stability of the copyright law,which can promote the establishment of the public domain,make public has access to and use rich intellectual products and information,and obtain knowledge and ability to think rationally to collapse knowledge,thought and culture authority.Non-voluntary licensing system can serve as compensation for unauthorized use of copyrighted works and can provide immunity from widespread copyright infringement.Legal norms themselves have the characteristics of relative stability,compared with the high-speed development of the Internet,legal norms have the characteristics of normal lag,which requires the law to respond and update closely with the development of the Internet.Intellectual products are non-exclusive and non-competitive,which requires proper protection of intellectual property rights.While preventing negative externalities and free-riding,the beneficial use of intellectual products should be brought into play to facilitate consumers' free access to intellectual products.The restriction system and licensing mode of copyright are regarded as two sides of the non-voluntary licensing system.Under certain exceptional circumstances for a permitted use,the non-voluntary licensing system can serve the function of licensing,but at the same time,it is defined as the right restriction system in copyright law,which restricts the copyright owner's right of dissemination through information network under the Internet environment.Contract protection and the protection of technical measures are mechanisms protected by copyright law to safeguard the rights holders' interests,but different from the scope of legal rights protection in copyright law,and these mechanisms belong to the private empowerment behavior of copyright owner.Rights holders can impose unreasonable obligations on users by means of self-help measures or create quasi-intellectual property or factual intellectual property beyond the traditional copyright law.Given this,it is necessary to restrict the copyright owner's private creation of rights and rules.In copyright law,there is neither regulation on the effectiveness of copyright contract,nor distinction between mandatory norms and arbitrary norms in copyright restriction system.Therefore,the copyright law has no mechanism made to constrain the effectiveness of copyright contract at present.As for the protection of technical measures,although the copyright law stipulates an exception that prohibits circumvention of technical measures,the scope of this exception is limited and far less than the scope stipulated by the copyright law for fair use and legal license,and it cannot guarantee users or the public to use or access the works.The fundamental reason why the non-voluntary licensing system of copyright can't play its due role in restricting rights is that users or the public have no status as a right subject in copyright law compared with copyright owners in a strong positition.Meanwhile,there is only the traditional exception and restriction system of copyright rights for the protection of users' interests in copyright.Such a system can be deemed as a privilege or an objective right of users.The copyright owner has neither a negative obligation not to prevent users from realizing their behavior of use under the non-voluntary licensing system,nor a positive obligation to assist users in realizing their specific behavior of use.Speaking of no independent litigation to implement the right,it only means that users have no obligation not to use this restriction or exception system,without giving other individuals the obligation not to hinder or assist in realizing this restriction or exception.By determining that the non-voluntary licensing system can be exercised as the users' rights and giving users specific rights,it can play an important role in protecting users' litigation rights and solving the conflict between contract protection,technical measures and non-voluntary licensing system of copyright.To explore the value of the non-voluntary licensing system itself,investigate other countries as well as the provisions of international treaties on the legal licensing system and compulsory licensing system,observe the other countries of the corresponding industry development status and stage of development,as concerns the non-voluntary licensing scope of important considerations,combing the formation and development of the non-voluntary licensing system,can provide theoretical basis and system experience for China's copyright law modification.In this paper,the first chapter discusses the copyright non-voluntary license and international treaty basis for the two systems,focuses on the background of the revitalization of the non-voluntary licensing system,existing Internet licensing practices cannot cope with the mass licensing required in the context of mass digitization,there is a trade-off between the principle of the highest efficiency of Internet communication and the effective protection of prior authorization required by copyright law,to clarify the disputes between Internet communication efficiency and protection standards,legal arrangements and private creation rules,property protection liability rules and property rules in relation to the copyright non-voluntary licensing system under the development of Internet technology.The second chapter discusses the legitimacy of the construction and improvement of the copyright non-voluntary licensing system under the Internet environment.From the perspective of the expansion of copyright owner's rights squeezing users and cultural public domain and the failure of copyright such as unauthorized use under the Internet environment,this paper explains that we should adopt legal means to achieve the legislative goal of copyright law under the Internet environment.And there is no exact evidence to prove that the development of new communication technology has a negative impact on the interests of the dissemination of works,the economic interests of the industry,and the enthusiasm of the right holders for re-creation,the large-scale dissemination of copyright works brought about by the development of Internet technology will not weaken the incentive effect of copyright law to a large extent.The third chapter discusses the right basis and the right restriction basis of the copyright non-voluntary licensing system.A user's right should be introduced into the copyright law to stipulate the content and institutional protection of the user's right,which is different from the previous attitude that copyright restriction and exception system are only regarded as the user's privilege in theoretical research and judicial practice,It can play an important role in protecting the litigation rights of users,dealing with the conflict between contract protection,technical measures and copyright non-voluntary licensing system.Discuss the rights restriction basis of the non-voluntary licensing system under the background of Internet dissemination of works,the definition of the scope and boundary of the right of dissemination through information network has an important influence on the application scope of the non-voluntary licensing system under the Internet environment,it is necessary to divide information network dissemination behavior from distribution behavior and broadcast behavior.This paper mainly discusses the legitimacy and limitation mechanism of the information network dissemination right which has been ignored in theory,and demonstrates the international convention basis,legal basis and public interest protection and other factors of the limitation mechanism,so as to provide the right basis in copyright law and theoretical support for the construction of the non-voluntary licensing system in China.The fourth chapter analyzes the general principles and requirements of the application of the legal licensing system,especially in the Internet age,how will the non-voluntary licensing system,mainly is the legal licensing system can better apply to the process of mass digitization takes two paths,one is to extend the existing legal licensing system applicable to the Internet space,one is setting new legal licensing system and the compulsory licensing system for Internet environment.The copyright protection and restriction system in the traditional environment should be naturally extended to the Internet environment,to protect the public interests in specific fields,a new non-voluntary licensing system can be introduced into the copyright law.At the same time,the system of non-voluntary license is a derogation of the interests of the right holder,so it should follow the due process.The fifth and sixth chapters discuss the conflict and reconciliation between the copyright owner's self-relief measures to control the users' access to and use of information through contract and technical measures and the non-voluntary licensing system under the Internet environment.On the basis of recognizing the rationality and legality of contract protection and technical measures protection,the legal protection means of the non-voluntary licensing system are coordinated with technical measures protection means and contract protection means of private creation copyright regulation,so as to construct the applicable level between the two,and reconstruct the non-voluntary licensing system under the Internet environment,from the legal status of the copyright restriction system to the general legal system of the user's permission to use the work,reshaping the boundary of the exercise of the right of the owner of the work,to protect the interests of the users of the work.The copyright restriction system can not only be regarded as a defense against copyright infringement,but also as a right of copyright users,which can be guaranteed to be realized directly through national coercive force.The copyright restriction system,which is of great significance for realizing the goal of copyright law and balancing the interests of copyright owners,users and society,will be transformed into mandatory legal norms,which forbade the parties to exclude the application through contract agreement,and the contrary contract agreement will be invalid.If the right holder fails to take voluntary measures or the circumvention device provided fails to meet the reasonable use needs of the user,the user shall be stipulated to have the right to apply to the right holder or the competent administrative authority for circumvention of the technical measures,and may at the same time request the right holder or the competent administrative authority to provide appropriate measures for circumvention of the technical measures.