Study On The System Of The Copyright Implied License

Today,the digital technology network wave has swept through the copyright law field again,the huge amounts of digital information is flowing in a rapid,simple and low cost way.But the trend of the balancing of interests are skewed under the rigid mode.In order to deal with the dilemma of massive authorization,the traditional copyright such as“fair use”and “statutory license”can do nothing about it.The licensing methods of“Creative commons public licenses”and“Authorization offer”have a little effect,even which intensifies the conflict of interests between the copyright owners and the users.The implied license is a flexible approach to solve one by one authorization problem.However,the implied license has been active in the Anglo-American law system, The United States has been a precedent system evolution and trend through a lot of judicial precedents.But the Civil-law system improve very slowly,even they do not recognize the existence of implied license system.Our country has not enacted the implied license legislation,which is only confirmed in the regulations for the first time,but it has lack of complete system design.In practice,there are a large of number of legal disputes caused by implied license,especially intensified in the network environment.Therefore,based on the absence of legislation and practice of urgent needs,we are in urgent need of legislation on responding to implied license system to realize the value of implied license system.Firstly,The basic theory of the implied license.In the aspect of definition,Western scholars and Chinese scholars study the definition of the implied license from different angles,and then analyzes the meaning of implied license.In the aspect of nature,there is a highly controversy about whether the implied license is a right to restrict.This article attempt to explain that the implied license belong to licensing,but is not restricting to right.Secondly,The comparison of the system of implied license in copyright.The common law countries (regions) take the United States as an example,the implied license has been continuously deepened and developed though in a large number of cases,whose scope extends from the traditional domain to the network domain.And it put forward the“encourage the use”and “aware of the use”of the standard.The civil law countries (regions) take Germany,Japan and our Taiwan area as examples, the implied license just scatter in legal provisions, which is not independent system value.Therefore,Compared with the Common law and the Continental law on the legislative attitude,the legislative purpose,the specific system and several other aspects,we can borrow ideas from abroad.Thirdly,the legislation and judicial practice of system of implied license of copyright.Nowadays,laws of system of implied license involved in copyright law in China mainly in “statutory-license-in-law”,the 9th article of Regulations on the Protection of the Right of Communication through Information Network and the implied license of judicial interpretation in copyright law.By analyzing representative cases in judicial practice in China, there have been imperfections in our legislative including that the legislative attitude is uncertain,the legislative system is not rigorous,the legislative scope is not broad and legislative content is not comprehensive.Finally,suggestions on improving the implied license in China.Firstly is improvement of legislative level.The implied license can be stipulated in the Copyright law as an independent system.Secondly are lessons from China and the United States,we should propose different trial standards and expand the scope in the network environment and the traditional environment.Thirdly is the strengthening of security system.We should establish the protection mechanism to maintain the copyright owner′s economic interests to avoid the interests being compromised,for example,give the right to terminate,the right to dissent and the right to get payment.At the same time,we can combine the implied license with the copyright collective management organization in order to ensure the collection of the remuneration.