Research On Implied Iicense System Of Copyright In Digital Environment

In the middle and later period of the 20 th century,the emergence of the Internet has brought about great changes in communication technology.The subject,carrier and mode of communication of works have undergone tremendous changes.The complex situation of "massive authors,massive works and massive authorization requirements" has emerged.Under the background of the digital age,the traditional "one-to-one" authorization mode seems to be insufficient,and the original transaction mode of copyright can not play its role,which leads to the unprecedented expansion of the rights of copyright owners in the digital era.The contradiction between copyright protection and the public's demand for the use of works is intensifying,and the initial balance of interests pattern appears unbalanced.In the Internet era,the key areas of rights protection have gradually changed from the right of reproduction to the right of communication,and the legal system of copyright has also developed from "controlling reproduction" to "controlling communication".According to the principle of balance of interests,copyright owners should not and can not absolutely control the dissemination of works in the digital environment.Especially in the context of the Internet being so developed and popular,it should imply that website operators,digital publishers,the public and other users should pay for the use of works,so as to alleviate the pressure of massive works authorization.As one of the rights restriction system,implied license of copyright aims to promote the effective exercise of copyright owner's rights,meet the massive demand of work users for work authorization,and rebalance the interests of all parties while minimizing the limitation of rights of copyright owners.Therefore,in order to effectively solve the contradiction between the efficiency and cost of authorization and protect the legitimate rights and interests of copyright owners,it is urgent to construct the implied license system of copyright in the digital environment from the perspective of achieving the balance of interests of all parties.In addition,China is in the key node of the third revision of the copyright law,and there is no final conclusion on the revision of the relevant provisions of the implied license system of copyright.Therefore,it is of great significance to construct the implied license system of copyright in the digital environment under the background that the revision of the law in China has not been completed and the international legislation is still exploring.It is not only a response to the dilemma of copyright licensing in the digital era,but also provides necessary theoretical support for international legislation and domestic law revision.It should be emphasized that the implied license system of copyright is not only applicable to the digital environment,but also to the traditional environment.In the digital environment,the implied license system of copyright shows stronger ability to deal with the dilemma of copyright license because it is divorced from the contractual relationship.From the system context analysis,we can see that the continuous development of science and technology has gradually evolved the implied license system of copyright from the traditional environment to the digital environment.However,both the traditional environment and the digital environment have the same theoretical basis.Moreover,the historical inheritance relationship between the two completely abandons the traditional environment and simply discusses the digital environment is neither reasonable nor comprehensive The research on the implied license system of copyright under the environment will inevitably involve the traditional environment,so as to reflect the uniqueness and superiority of the implied license system of copyright in the digital environment.In this paper,the author starts from the origin of the system of implied license of copyright,analyzes the legal connotation,and takes the interpretation of the concept of implied license of copyright,legal characteristics,and definition of nature as the research basis.In the aspect of argumentation construction,this paper demonstrates the legitimacy of the implied license system of copyright from the perspectives of legal basis,economic analysis and interest balance interpretation,and formulates the institutional framework on this basis.In the aspect of practical development,this paper analyzes the current situation of legislation and judicial practice of copyright implied license system in common law system and civil law system countries,and explores the differences and similarities between the two legal systems,so as to provide useful reference for the construction of domestic implied license system of copyright in China.The first chapter is an overview of implied license system of copyright in digital environment.This article takes the legal traceability as the breakthrough point,and combs the development of implied acts in civil law,implied terms in contract law and implied license in intellectual property law in detail,which reflects the inheritance and evolution of implied license of copyright to traditional implied theory.With the passage of time,the theory of implied license develops and extends in the field of traditional copyright law.It not only provides theoretical support for the one-time exhaustion of distribution rights,but also interprets and repairs the original contract relationship,showing a state of dependence on the contract.With the development of science and technology,the environment and rules are constantly changing.Under the traditional environment,the implied permission based on contractual relationship has been unable to solve all kinds of cyberspace problems.The contradiction between copyright protection and the public's full contact with the information of works is becoming increasingly fierce.In addition,under the background of digital era,a series of problems,such as "massive authorization" and high transaction cost of traditional authorization,bring new challenges to traditional copyright licensing.However,the mechanism of "choice exit" and the factor of "presumption" embodied in implied license surpass the contractual relationship to obtain a new development space in the network environment,showing strong adaptability and superiority,which has become the practical needs of dealing with the copyright licensing problems in the digital environment.The second chapter is the legitimacy analysis of implied license system of copyright in digital environment.This paper demonstrates the legitimacy of implied license from the perspectives of legal basis,economic analysis and interest balance,so as to obtain a correct understanding of its system value and function.From the legal basis,the expansion of information freedom space in the digital age means that the space for copyright protection is compressed,resulting in the imbalance between copyright protection and information freedom.While the Internet provides convenience for freedom of information,it is also necessary to fully protect copyright,build a new legal order in the digital age,and adjust social relations.Due to its unique flexible mechanism,the implied license system of copyright has become the way to reconcile the conflict between freedom of information and copyright protection.As an important basic theory of civil law,the theory of expression of will has become the theoretical starting point of implied license system.It is not only reflected in the fact that copyright license is a civil legal act with the owner's declaration of will as its core content,but also as the important support provided by the theory of expression of will for implied legal act.The ultimate purpose of trust protection theory is to protect the reasonable trust generated by relevant transaction subjects in the transaction process,so as to effectively maintain the fair,safe and efficient value in the transaction process.By protecting the reasonable trust of copyright licensees,the implied license system of copyright realizes fair and safe trade and effectively promotes the rapid circulation and transformation of works.In terms of economic analysis,copyright is closely related to economics,and works contain corresponding economic value,and the copyright system is only analyzed from economics.Law and economics pay more attention to the benefits brought by the legal system to all walks of life.Based on the principle of economic benefits,we should deeply understand and objectively evaluate the implied license system of copyright in the digital environment from the perspectives of incentive mechanism,transaction cost theory and long tail theory.From the explanation of interest balance,continuous technological innovation leads to the excessive expansion of copyright and copyright protection in the digital environment,and the continuous shrinking of copyright restrictions,which seriously damages the internal interest balance of copyright law,and then causes the legitimacy crisis of copyright law.The interest balance not only provides solid theoretical support for implied license of copyright,but also provides it in the process of system operation To solve the crisis,we have fully realized the reasonable distribution of the interests of all parties.The third chapter is the overseas investigation of implied license system of copyright under the network environment.Through the comparative analysis of the implied license system of copyright in the main countries(regions) of foreign common law system and civil law system,it provides valuable reference for the construction of China's implied license system.The traces of implied license system have appeared in common law countries for a long time,and through a wealth of judicial cases,it promotes the development and evolution of implied license,and finally forms a clear historical context and complete institutional structure.Civil law countries and regions pay more attention to the stability of the law.In addition to their special legislative style,judges in civil law countries and regions can not solve the new problems faced by copyright in the digital environment through precedents.Therefore,the use of implied license system in the civil law system is relatively cautious,and its solutions to new problems in the digital environment are more from The original framework or from the perspective of civil law basic theory,rather than the common law countries to explore the application of implied license in breaking through the border.Generally speaking,the implied license system of copyright in civil law system is only scattered in some legal provisions,neither in the form of special system provisions in the written law,nor in the case practice to evolve and develop.Although it seems that there are obvious differences between the two legal systems in terms of legislative attitude,goal pursuit and system form,there are still some similarities,which is the balance of interests,which has become the basic criterion for the construction of localized implied license system of copyright in China.The fourth chapter is the current situation of implied license system of copyright in China under the digital environment.In terms of legislation,the implied license system of copyright has its basis in civil law theory and specific norms.Whether it is Article 56 of the general principles of civil law,Article 140 of the general principles of the civil law,Article 10 of the contract law and Article 66 of the general opinions of the People's Republic of China in the former civil code era,or articles 140 and 469 of the civil code in the era of the civil code,all of them can adopt other civil legal acts.The other forms contain no doubt implied.In the copyright legislation,if the provisions are carefully explored,traces of the existence of implied license can still be found.Specifically,it is particularly obvious in articles 23,33,40,44 of the copyright law and articles 6,7,8,9and 10 of the regulations on the protection of the right of information network dissemination.In the aspect of judicial practice,the development and evolution of implied license system of copyright in China in different stages,such as embryonic preparation,system start,development breakthrough and scope expansion,not only extends the content of the legislative system,but also reflects the gaps and improvements in the legislation.In addition,there are still some defects and deficiencies in the implied license system of copyright in China at different levels: the macro level is lack of scientific and reasonable logical system;in the meso level,the scope of the system is unreasonable;in the micro level,it is reflected in the imperfect supporting measures,which need to be repaired and improved.The fifth chapter is the construction arrangement of implied license system of copyright in China under the digital environment.The birth of civil code marks that China has stepped into the era of codification.Under the background of the civil code era,the implied license system of copyright is a flexible licensing mechanism in the field of copyright.It is of far-reaching and great significance to construct a scientific and reasonable system model for improving the socialist legal system with Chinese characteristics.The specific measures are as follows: in terms of legislation,under the guidance of the principle of balance of interests,we should clearly define the legal position of the system and formulate a scientific and reasonable institutional framework.In the aspect of judicial practice,it is necessary to carry out a comprehensive and detailed system design based on the actual needs,define the specific scope,and improve the supporting measures,so as to safeguard and respect the interests of the author and the obligee,promote the dissemination and utilization of works,and provide an effective way to achieve the balance of interests.Through the construction of localized implied license system of copyright,this paper aims to solve the current dilemma of massive authorization in China,safeguard the legitimate interests of the obligee and the public,realize the balance of interests between all parties in the digital environment,and promote the development of China's cultural industry.