The Predicament And Outlet Of Collective Management Of Copyright In China

Collective management is an important part in the system of copyright, playing an important role in communication and coordinate the relationship between owners and users, saving the transaction cost of copyright, and improving efficiency. Legislation on the collective management started late in our country, facing the question and criticism from the users,even from the owners and the general public in practice, often mired in embarrassment and helplessness. Appear such a situation, not only because of the design flaws,but also have deviation in the process of system operation, and the lack of the core concept of the balance of interests is the most important cause. This paper try to start from the concept of the balance of interests, closely combine with the third revision of the Copyright Act in the collective management of rules and dispute, analyze issues such as mode selection.At the same time, put forward the corresponding improvement measures such as the collection and distribution of royalty,and the self development of collective management organizations in the digital age.In the first part, the paper makes clear that the balance of individual interest and public interest is the kernel concept of balancing of interests in the Copyright Act, and refinements in the collective management for the interests to maximize and balance. On interests maximization, with the economic analysis method, analyze the use of Coase Theorem in the collective management from the concentrated exercise of copyright and the cost advantages of standard license; interpretate the overcome of negative externalities from the perspective of public product theory. On interests balance, analyze the interests of opposition and unity between the owners and users. On base of this, explains the unity and opposite between public interests and individual interests in further. In order to avoid the hollow of public interest, correspond the public cultural needs which protected by the collective management and the development of cultural industry, and make clear the aim of the system which improve the public interest.In the second part, the paper re-examines and builds the legal relationship between the parties of the collective management. Previous studies of collective management, focus on the dominant parties such as owners, users and collective management organizations, and most of the definition of the legal relationship based on foreign practices, ignore the copyright as the private rights, and the wisdom of the parties, limit the free of expression, restrain the flexibility and diversity of collective management from unappropriate design. Based on traditional viewpoint, to establish the subject of the legal relationship between end users and other recessive parties from the view of balance of interests, make clear the development trend of middle of collective management organizations. Pay attention to the details such as litigation right allocation, the space of personal rights,and the extensibility of the collective management.In the third part, based on the defect of the orientation of non-profit and administrationlism, have become an important factor to restrict the development of collective management organizations. On the one hand, find the legitimate interests of collective management organizations from the angle of history and comparison, analyze the space of profit and the harmony between the profit and public welfare goals. On the other hand, find the reasons for the administration dilemma. We should define the nature of the collective management organization, guided by the concept of marketization which to nurture the detached party of interests, to get rid of the dependence on the administration, as a normal and efficient way for collective management organizations without controversy.In the fourth part, in view of the use of royalty has become the main questions to collective management, the paper adhere to the basic ideas of balance of interests, and try to resolve all conflicts of interest may be produced in the collection and distribution of royalty. Around royalties collection business, the paper not only interpretate the legitimacy of collection, and the effect on all parties from the theory level; but also analyze problems such as parties, procedures, reference factors of charge standard, and the way of charging from the view of practical, try to introduce special way such as interim payment and single charge. Around royalties distribution business,on the basis of principle and specific model, find the reasons to eliminate the questions and reproachs on the fees of management.In the fifth part, the paper focuses on the choice between competition model and monopoly model of collective management in China from the perspective of balance of interests. There present a model of monopoly and competition coexist from the countries all over the world. Monopoly Model is more advantageous to realize the maximization of the interests and the competition pattern is more advantageous to realize the equilibrium of interests. There is no definite conclusion which kind of model is more reasonable, can achieve more balance of interests between the involved parties. From the monopoly situation of collective management organizations in our country, monopoly model is more pragmatic choice. At the same time, in order to play the positive role, we should emphasis to remove the administrative monopoly factors in collective management, as well as introducing parallel authorization, build a moderate monopoly mode of collective management in our country.In the sixth part, the paper mainly elaborates the existence and development of the collective management in the digital age. The development of digital technology make great changes, such as the mode of creation, transmission, and the use of work, and it is possible for individual authorization model in the digital age. Internet service providers and internet content providers and end users, not only squeezed the living space of collective management organizations, but also changed the traditional pattern of interests under the collective management. But the impact is not fatal, collective management is still the effective way to solve the huge amounts authorization of copyright in digital age. We can build the information system of collective management, establish open online trading system to adapt to new technology.