| How to make the way of copyright licensing easy and how to reduce the transaction cost of licensing is the problem that copyright law has been facing.The collective management licensing mechanism was created to solve the large-scale licensing problem,but in fact,the collective management licensing system of copyright in China has not played its proper institutional role in the market of copyright licensing transactions.How to make the copyright collective management licensing system provide instrumental value for the solution of the above-mentioned problems is the core issue to be explored in this paper.Therefore,this paper examines the copyright collective management licensing system itself,shows the state of its judicial application by examining the provisions themselves,summarizes the difficulties faced by the mechanism in the institutional and real environment,and finally puts forward suggestions for improving the licensing mechanism of Chinese copyright collective management.This paper is divided into four main parts.Firstly,the licensing mechanism of collective management of copyright contains two pairs of legal relationships among three subjects.At present,the licensing relationship between copyright right holders and collective management organizations in China is stipulated in the law as exclusive license,while the licensing relationship between users of works and collective management organizations is not stipulated,and the blanket licensing model is adopted in practice.Since the law is not clear about the legal characterization of these two pairs of licensing relationships,there are theoretical and applicable controversies.Second,the author starts from cases to review the state of exclusive license and blanket license in judicial application.Due to the uncertainty of legal characterization,there is a controversy in judicial application.There are two controversial points in the judicial application of exclusive license: the legality or otherwise of individual rights,and the legality or otherwise of agency rights.The controversial focus of judicial application of blanket license is whether the blanket license constitutes an abuse of its dominant market position by the collective management organization,i.e.whether the blanket license constitutes a refusal to license,excessive license fee or tying behavior.Again,the author summarizes the judicial controversies and theoretical hotspots and distills the problems faced by the collective management licensing mechanism: at the institutional level,the collective management licensing mechanism faces the problems of unclear nature of licensing legal relationship,single licensing model and imperfect licensing fee rate mechanism;at the practical level,it faces the impact of network service providers and individual licensing model.Finally,the author proposes suggestions for China’s copyright collective management system to get out of the dilemma: the improvement of the system itself is the basis for the development of the licensing mechanism,and the author believes that the licensing legal relationship between copyright owners and collective management organizations should be characterized as a legal relationship of discipline from the legislative value of protecting the interests of copyright owners,and a pluralistic and open licensing model should be built among copyright owners,collective management organizations and users of works.At the practical level,the licensing mechanism of collective management should pay attention to the long-tail effect brought by digital technology,and provide a platform for licensing transactions between copyright owners and users of works through the interface with Internet service providers and the construction of a unified digital platform. |
