| During recent years, with the development and generalization of the technology of cloud computing, the SaaS (Software as a service) business model is rapidly changing the way people use software. By providing users with the "pay-as-you-go" online software service, the SaaS business model saves users all kinds of costs in purchasing, setting up, maintaining and upgrading software. However, at the same time, it brings new legal issues which do not exist in the traditional software business model. Firstly, in the matter of the content of software copyright protection, the SaaS business model has broken through the bundle of author’s economic rights in current copyright law, the problem is how to find a place for the new business model in the current legal system. Secondly, the changed licensing form under the new service-subscription business model has enabled the copyright owner exert an unprecedented power of control on his work, which has caused tension between the copyright owner and the public by not transferring any copy of software to the public. Therefore, the copyright law shall make corresponding adjustment for regaining the balance between the copyright owner and the general public. Meanwhile, since using the software is not accompanied by stable reproduction, so the current end user copyright infringement regime based on the "infringement of right of reproduction" shall be reconstructed. Thirdly, when the SaaS vendor delivers the software services by the user’s agreement, how to regulate the unfair standard terms in the user’s agreement is another important issue to pay close attention to.This article gives a brief introduction about the change in software business model and an overview about the SaaS business model based on the technology of cloud computing; it discusses the compatibility of the new business model with the current author’s economic right regime, the impact on the user’s right brought by the new licensing mode and the way to coordinate the conflict between the user and the copyright owner; it also discusses the characteristics, application of law and the standard terms of the user’s agreement, and offers suggestions for all the above problems. The author write this article from the perspective of the legal issues that brought by the SaaS business model by analyzing the current domestic and foreign research status, evaluating of current legal regime, case study and analyzing the agreement terms. The article contains the following four chapters:Chapter one gives a brief introduction about the classification and characteristics of the three traditional software business models:boxed software, internet distribution and distributed software model, and briefly analyzes the legal relations among the subjects involved in the process of software distribution and dissemination. On this basis, this chapter makes a comparative analysis on the characteristics and legal relations between the traditional software business models and the SaaS business model, and comes to a conclusion that the SaaS business model is completely different from the business models before the era of cloud computing in terms of the content of copyright protection and software licensing mode. Furthermore, it points out that under the SaaS business model, there is also a contractual relationship which combines the characteristics of lease, custody and service contracts between the user and the cloud service provider. And this chapter briefly points out the legal issues brought by the change of the above legal relations.Chapter two firstly gives a simple recall on the core content of copyright protection under the traditional software business model. After that, it points out that the SaaS business model which does not transfer any copy of software and only allow temporary use has further broken through the bundle of author’s economic rights in current copyright law after the "copy plus distribution" method under the boxed software business model and the communication through information network method under the Internet distribution business model. Moreover, this chapter respectively makes feasibility analysis for the new model to be included into the right of communication through information network, right of rental, right of reproduction or "other rights that shall be enjoyed by the copyright owner", and after examining the available research result, comes to a conclusion that by enlarging the scope of right of rental under the current copyright regime is a better choice; it then moves on to cope with the problems in applying right of rental to the new model which contradicts with the traditional rental relations in terms of the intangibility of the subject matter and no actual delivery involved during the process.Chapter three discusses the legal issues about the licensing mode under SaaS business model. Firstly, it analyzes that since there is no transfer of carrier or copy of software under the new model, users can no longer be protected by the "first sale doctrine". However, after reviewing the recent judicial development in Europe, this chapter further points out that this doctrine can be transplanted into the transfer of user’s right in the SaaS business model. Secondly, it discusses that by providing services under the new model, the public are strictly controlled in accessing to instead of acquiring the content of the software, which greatly influenced the fair use regime. Therefore, this chapter proposes to introduce a "reverse notice and takedown regime" to force the copyright owner to offer chances for fair use. Lastly, it discusses the problem that since no stable copy is produced during the use of SaaS, so the current end user copyright infringement regime based on "infringement of right of reproduction" shall be adjusted. It then points out the problem that current copyright law does not focus on the "use" of copyrighted work as the pivot in balancing different interest, and further reconstructs the end user’s copyright infringement regime.Chapter four studies the user’s agreement provided by the cloud service provider. On one hand, this chapter analyzes the legal characteristics of the user’s agreement and concludes that it combines multiple relationships of rights and obligations regarding rental, custody and web service contract, and briefly sorts out the question of application of laws. On the other hand, it discusses and gives advices on the problem of how to regulate the unfair standard terms and improve the cloud service provider’s liability under the user’s agreement. |
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