Research On Legal Regulation Of Online Resale Of Digital Works

With the development of technology and society,the trading and use of digital works have become an important part of People’s Daily life,and digital works have also become an important part of the publication market.According to the characteristics of the market,the prosperity of the primary trade will inevitably lead to the development of the secondary market,but the digital works market is not normal: Based on the various types of copyright involved in the online resale of digital works and the conflicts between legal provisions and contract agreements,there are often disputes on the identification of legal nature and legal relationship,which ultimately results in the online resale of digital works being unable to obtain "equal" treatment with the offline resale of traditional publications.In this regard,it is necessary to take the concept of balance of interests under the network environment as guidance,coordinate with the relevant theoretical and practical achievements of other department laws under the development of digital society,and adjust the relevant provisions of copyright law,to not only safeguard the legitimate and reasonable rights and interests of the right holders but also ensure the due rights of the holders of digital works and the free circulation of digital publications under the new environment.Specifically,in terms of relevant Chinese laws and regulations,the online resale of digital works is still not recognized.This is because the "delivery" of online resale of digital works is realized through digital transmission,and the act of providing works through digital transmission is recognized as the act of information network transmission in China,and such actions cannot be exempted according to exhaustion of the distribution right.In other words,In the absence of the right holder’s permission,the relevant behavior can not be legitimized naturally.In addition to the disputes about whether digital transmission can constitute distribution and whether exhaustion of the distribution right can be exercised in the network environment,there are still some problems in our relevant legal regulations,such as the mechanization of the identification of information network transmission behavior,the lagging development of fair use rules,and the lack of unified standards for the identification of user license format terms.In this regard,since relevant international practices started earlier,relevant overseas practices can be used for reference.In general,relevant practices in the European Union,the United States,and Canada on the one hand show that rights,which are able to control digital transmission,have multiple options,and the court should base on the substantive content of the behavior and the legislative history of different rights and relevant provisions,to determine which right is able to control the involved behavior and what provisions can be applied to the involved behavior;on the other hand,as far as the relevant exemption rules are concerned,exceptions to technical copying should be specified in addition to restrictions on the exercise of exhaustion of the distribution right in the network environment.To be specific,we can improve the system content related to the online resale of digital works from four aspects: correcting the single identification standard of information transmission behavior,revising the exercise scope of the distribution right and exhaustion doctrine,perfecting the fair use rules on technical reproduction,and unifying the evaluation standard of user license format clause.