What are the controversial issues in the revision of the Copyright Law
Although there are many controversial issues in the Copyright Law, in summary the main There are three issues in dispute: statutory licensing, online communication, and collective management. Let’s take a look at the three main controversial issues.
One of the main controversial issues: statutory permission
The so-called statutory permission refers to the user’s legal Under certain circumstances, one can use the copyright owner's work without permission, but remuneration must be paid. my country's current "Copyright Law" stipulates five types of statutory licensing systems for copyright, including textbook compilation and publication, newspaper and periodical reprinting, sound recording production, and radio and television broadcasting. The original intention of statutory licensing is to promote the dissemination of works, but in practice, the copyright owner's right to receive remuneration cannot be guaranteed. As the National Copyright Administration pointed out in a brief explanation of the revised draft: “Judging from twenty years of practice in the copyright legal licensing system, there are basically no users who fulfill their payment obligations, and there are very few cases where users fail to fulfill their payment obligations. However, the National Copyright Administration believes that the value orientation of the copyright statutory licensing system is The system functions are in line with China's basic national conditions. The current failure of the system lies in the lack of payment mechanisms and legal relief mechanisms. Therefore, the draft focuses on adjusting and improving the statutory licensing system from these two aspects, and adds provisions on the user's obligations such as prior filing, timely payment, and specifying the source. If the user fails to perform the above obligations in a timely manner, the copyright administrative agency may Administrative penalties will be imposed in specific circumstances.
As for Article 46 of the revised draft, which states that "three months after the first publication of a sound recording, other producers of sound recordings may, under legal conditions, without the permission of the copyright owner." People in the music industry jointly raised strong objections to the regulation on "using their musical works to produce sound recordings", believing that the "three months" time is too short and is not enough to recover costs. It will severely dampen the enthusiasm for music originality and directly endanger the The survival of record companies, and will think that other music media promoteBroadcasting enterprises (such as radio stations) will also be implicated.
However, judging from the draft, there are clear prerequisites for the application of Article 46, that is, the user must register in accordance with the provisions of Article 48, Only by indicating the source and other information and paying royalties can the published works be used without the permission of the copyright owner. The Copyright Law does not protect the interests of a certain group, but takes into account the interests of copyright owners, first-time recorders and other recorders, as well as the public, to achieve a balance between the interests of all parties. In fact, the legal licensing system for the recording of musical works has a certain historical background. Its legislative purpose is to prevent major record companies from monopolizing music recordings. This is because major record companies often require songwriters to sign exclusive licensing agreements with them. In order to become the only company with the right to use its musical works to make recordings, it monopolizes the market for recorded music works and raises prices. However, it is still worth discussing whether the "3 months" time limit in the current draft is reasonable. When determining this period, the life cycle of the sound recording should be fully taken into consideration, and a reasonable period should be determined to achieve the interests of the first-time recorder and other recorders. balance.
In addition, except for newspapers and periodicals that can make exclusive declarations, the draft does not allow other copyright owners to declare that they reserve their rights, so as to avoid overriding the legal licensing system and losing the opportunity to apply it. . The statutory licensing system is essentially a restriction on the rights of the obligee. Therefore, only by fully guaranteeing the right holder's right to receive remuneration can the system be prevented from depriving the obligee of his rights.
The second major controversial issue: Internet communication
There are three clauses in Article 69 of the revised draft , the first of which is that network service providers that provide purely technical services are not responsible for censorship, that is, when network service providers provide network users with pure network technology services such as storage, search, or links, they are not responsible for information related to copyright or related rights. Duty to review. In fact, there are already similar provisions in the "Regulations on the Protection of the Right to Disseminate Information Networks". This provision is a choice to balance the interests of creators and disseminators of works in the Internet environment. It is a common practice in countries around the world for providers of network technology services. Regulations, also known as the "safe harbor principle", are the principles of technology neutrality and fault liability. The network service provider bears fault liability, which is also in line with the general principle of liability for tort damages. Moreover, this regulation is also in line with the reality. It is not practical to require network service providers to review network content, and it is still difficult to achieve with the current technical level.
Article 69, paragraph 2, stipulates notification and deletion obligations. Network service providers have obligations such as deletion if notified by the copyright owner, such as Failure to do so will result in joint and several liability with network users. Paragraph 3 stipulatesIt refers to the liability borne by the network service provider when it knows and should have known about the infringement. It means that the network service provider must bear the duty of care, which is commonly known as the "red flag principle". If the network service provider fails to fulfill its duty of care, it will Be responsible. This provision corresponds to the theory of direct infringement and indirect infringement. If an Internet user commits a direct infringement, the Internet service provider must be subjectively intentional (including knowingly and should have known) to bear joint and several liability.
Opponents believe that this system makes copyright holders’ rights protection actions in the face of many Internet companies ineffective. In situations where it is often difficult to identify the network user who committed the infringement, this provision will make it difficult to fundamentally protect the interests of the copyright holder. If the work of copyright owners can be obtained for free through online piracy, originality will undoubtedly be stifled. However, as mentioned above, the Copyright Law strives to achieve a balance of interests of all parties under realistic circumstances and cannot only consider the interests of a certain group.
The third major controversial issue: collective management
Amend Articles 60 and 70 of the draft Article 1 is a provision regarding the extension of copyright collective management to non-members. According to these two provisions, even if the right holder has not joined a copyright collective management organization, the collective management organization can still exercise rights on behalf of the right holder. As long as users pay remuneration to the copyright collective management organization, they do not have to bear liability for compensation. This provision makes it impossible for right holders to pursue claims through litigation against users who have paid royalties to collective management organizations. Judging from the current situation, the amount of compensation obtained by the court through litigation is usually higher than the charging standard of the collective management organization. Therefore, this extended collective management provision has caused many rights holders to question it.
According to the provisions of the revised draft, broadly representative copyright collective management organizations can be permitted to carry out extended copyright collective management business on behalf of non-members. This kind of "extended management" has a good original intention. It aims to solve the problem of "users willing to use the works legally but cannot find the right holder" and expands the coverage of copyright agency protection. However, the problem lies in the right holders to whom it is "extended". Are you willing to be represented by a copyright collective management organization? The higher compensation that non-members may obtain through litigation will influence members to withdraw from collective management, which will undermine the collective management system. The solution to this problem will depend on the unification of the amount of litigation compensation and the charging standards of collective management organizations. .
There are also views that when the effectiveness of the existing copyright collective management organization has not been fully exerted and the mechanism is not perfect, it may not be appropriate to forcibly extend its management to non-members. . Copyright collective management organizations are non-profit social organizations.There is the word "management", but its essence should be to serve copyright owners, and its credibility depends on the quality of the service. However, the current copyright collective management organizations are not open and transparent in collecting fees and management information, and are not proactive and ineffective in safeguarding the rights and interests of copyright owners. This makes it difficult to gain support from rights holders and the conditions for extended management may not be mature. In addition, it is also necessary to introduce a competition mechanism into collective management organizations.
The above is the relevant knowledge about the above issues compiled by Hualu editor for you. This website provides you with professional lawyer consultation. If you have any questions, Welcome to the Legal Savior Network for consultation.
