| Because of their own lack of maximize the use of their copyright to the full economic benefits of resources, rights holders often authorize other persons to use their rights, licensing, also known as license. It includes exclusive license and non-exclusive license。Individuals, companies, countries struggling to develop new ideas in culture, goods, services or markets, in order to create new sources of wealth, stimulate production and dissemination. Copyright law is designed to protect those innovations, and to encourage further innovation. Technological progress, culture of innovation, as well as improvement of marketing continues to occur and promote copyright related systems continually updated.In the past,technical development threatened the interests of copyright owners, so it was need to protect the interests of the right holder with legal instruments, that promoted the expansion of copyright rights. Current technological developments impact on copyright were different: the development of new technology posed the threat on copyright protection, but it also provided guarantees for the use of copyright with technical measures and standard contracts. However, the overall interests of the community are constant, the expansion of the rights of the copyright owner, to some extent, will affect users other than rights holders and the public interests. Copyright law’s history is a long history about balance of interests, in the process of development of new technologies, implied license might be the best practice selection to balance the interest between copyright owners, users and the public within the existing copyright system. However, China’s current copyright law, there is no implied license under the relevant applicable, theoretical and practical discussion on implied license specific and applicable standards are numbered. However, China’s current copyright law, no relevant provisions are applicable on the implied license, and the theoretical and practical discussion on implied license applicable standards are numbered.Firstly, The Sino-American case-oriented, draws out the dispute about the nature of implied license and through comparative analysis to clarify the difference between copyright implied license and implied terms of the contract, fair use; Secondly, based on the above analysis, discuss the applied conditions of implied copyright license under Chinese judicial practice. The article is divided into five chapters, the first chapter sets out disputes over the nature of the implied copyright license; The next three chapters focuses on discussing the law issues about implied license applied conditions. Fifth chapter analysis implied license to sub-license issue which is the common problems of the implied license applicable cases; the last chapter mainly summarized the points of the article. Section lines, as follows:Introduction, firstly, discusses what is the problems when the implied license applied into the cases in China, that is the article to resolve and is also of significance of the article. On the basis of previous research, to further study the implied copyright license and sublimate it; Once again, through comparative analysis, case studies, and other methods, defining the implied license problems, then clarifying the disputes of implied license.Innovation of this article is to clarify the dispute of the implied license nature stem from the scholars, then make it clear that what is the conditions can be applied to the implied copyright license.Body consists of five chapters:First chapter to Disney case for point, leads to the controversy between implied license and contract implied terms, through compared analysis method clear the difference between Contract Implied Terms and Supplementary Contract Interpretation,point out that the judgment of the case is right, but this judgment reason can not apply for Civil law system, and description reason. Eventually concluded that copyright implied license rules of Common law system of are not entirely applicable to Civil law system, should combine with our existing laws adequate to refer.Followed by "three against Mc Kinnon" case-oriented, points out the existing problems of China’s judicial practice on implied copyright license, clarifying the distinction between implied license and fair use, indicating that different from fair use, implied license respect willingness of people, to some extent, need to pay. Finally, presented the controversies and the trial of the cases, analyzed and summarized conclusion.Implied permission of copyright licensing system is one methods of the copyright owners to use their works, usually used in judicial practice copyright as infringement defense, it has the certain origin and similarities with fair use and contract implied license, but they are essentially different. This chapter clarified the concept and the nature of implied license as the foundation for next context to discuss and analysis conditions which applied to the implied copyright license cases.Chapter 2 is based on the analysis of chapter 1, Ahadams case as a typical, leads to questions, namely whether the consensus is a precondition of implied license. To analyze and integrate the cases from American which are similar to domestic cases,analyzing and summarizing judgment of the cases on the issue, and eventually conclude that consensus is not a prerequisite to judge implied license.Chapter III, based on the analysis in the preceding chapters, the Cohen case as the starting point, this chapter focuses on the raised issues: whether it is a prerequisite to judge implied license. Through in-depth analysis of the root causes of the problems, concluded that the consideration is not a prerequisite to judge implied permission.The fourth chapter, Field v. Google case as the starting point, draws out the issue of implied license application in network environment, namely weather "out--put" mechanism can be used in network environments. Because of the complicated network environment, infringement hidden and difficult to find, make it difficult for rights holders to capture or identify the infringer. The existence of implied license increases the risk of rights holders. Network environment implied license "out--put" mechanism applies not only to protect the interests of right holders, but also purify the copyright infringement, then achieve a balance between personal interests and the interests of society.The fifth chapter, in judicial practice implied license usually as infringement defense, but to successfully defend not only need to prove the existence of implied license, also need to prove the existence of sub-license. This is common issues in many cases. This chapter presents the "Fang Zheng v. P&G" case as a typical case, combined with the above-mentioned cases to analyze, summarize and discuss this issue, then concluded that the use of works within the scope of a particular purpose can be licensed, but in addition, implied license can not sublicense.Last chapter is the conclusion, the summary of the above discussion views and further discussion. |
PDF Full Text Request