The Application Of The Right Of Fair Remuneration In Copyright Contracts

With the development of the Internet economy and the promotion of capital to the platform economy,in the field of copyright generation,dissemination and utilization,the value gap between creators and disseminators for the revenue of works has further widened.The right to fair remuneration(also known as the "right to receive remuneration twice"),as a right to grant creators the right to claim remuneration from the profits formed by the work except the price based on the copyright license or transfer contract,is going through the stage of feasibility study in China.This article advocates that China should gradually establish a system of fair remuneration rights for creators with specific industries as units to protect the interests of creators.The first chapter explains the basic concept of the right to fair remuneration and China legislative attempt to it.The right to fair remuneration is a legal right to adjust the autonomy of will.The purpose is to give creators the right to request the subsequent income generated by the work,so as to better protect the rights and interests of creators.During the revision process of China’s Copyright Law,the right to fair remuneration was considered to be reflected in the draft legislation,but it was finally put on hold due to the complexity of the system and the difficulty of implementing it in a short time.The second chapter discusses the dilemma of the rights exercise of creators in the field of copyright contracts in China.At the aspect of audio-visual works,the sky-high remuneration of stars performers squeezes the remuneration space of other major creators,which leads to the lack of ways for creators to claim the right to remuneration.At the textual aspect,the format contract dilemma faced by online literature authors needs to be paid attention.In the format contract drawn up by the China Literature,the head platform of online literature,there is an unclear agreement on the distribution principle of copyright income from IP adaptations,and writers lacks reasonable measures to check he accuracy of China Literature and its related income.From the perspective of China copyright law,China contract law and China antimonopoly law,it is difficult to provide effective relief under the current law,and in the "Ghost Blowing Lamp" case,the court affirmed the commercial operation mode of the online literature platform’s copyright and other business models,which has formed a negative demonstration effect,and even more so,it further exacerbates the imbalance of interests caused by this model.The third chapter discusses the institutional development of the right to fair remuneration in the "Directive on Copyright in the Digital Singles Market" and its reference to China.On the basis of clarifying the legal considerations of the right to fair remuneration in the EU,the interests of different subjects in the EU copyright dissemination and use industry line need to be paid attention to.On the basis of the comprehensive interest demands of various EU subjects,adjusting the principle of freedom of contract with the principle of contract justice is the idea of possible value balance way in the EU.Regarding the implementation of the right to fair remuneration in the Directive,the Directive clarifies that authors or performers should enjoy appropriate and proportional remuneration rights,not limited to the remuneration agreed in the copyright contract,and this right cannot be waived.In order to ensure the smooth implementation of the right to fair remuneration,disseminators and other subjects who have succeeded in using copyrights should be required to fulfill their obligations of transparency and disclose relevant financial information about the income of works to creators.In addition,alternative procedures for dispute resolution and the right to rescind contracts should be set up to strengthen the effectiveness of the right to fair remuneration from the perspectives of supporting creators’ rights protection and the relief system when disseminators exercise their rights passively.Legal transplantation should pay attention to the localization characteristics of China,and compare the differences in the background between the EU and China.Although the background of the Directive on Copyright in the Digital Singles Market is slightly different from that of China,it should not be an obstacle to the implementation of the right to fair remuneration system.The fourth chapter puts forward some suggestions for the implementation of the right to fair remuneration in China based on the above discussion.First of all,based on the theoretical basis of incentive theory and the adjustment of the principle of contract justice to the principle of freedom of contract,and on the basis of fully considering the relative relationship between creative factors and capital factors,the right to fair remuneration should be set as the legal right to remuneration in the Copyright Law.At the same time,the scope of application of the right to fair remuneration and the triggering criteria for the right to fair remuneration should also be clarified.Secondly,the supporting system for the application of the right to fair remuneration in the field of copyright contracts should be improved.Specifically,first,China should set up transparency rules to protect creators’ rights protection motivation.The transparency rules should be initiated by the rightholder’s active written notification.Second,the general handling of property rights in works should be prohibited.Third,the role of CMOs in the right to fair remuneration should be clarified,including that the legal relationship between CMOs and creators should be defined as a fiduciary relationship,and CMOs should be allowed to intervene in creators’ dispute resolution procedures.