Research On The Contract Of Personality Commercial Exploitation

The contract of personality commercial exploitation can be divided into four types, which are “personal isolates” business contract, service contract, license contract of personality commercial exploitation and right transfer contract of personality commercial exploitation according to the subject matter. Within the first three of four, they respectively correspond to the personality elements of corporality, action freedom, identification and dignity. And the fourth kind of contract is to deepen the third one. Due to the relationship is too tight between elements of corporality and action freedom with living entity, these elements of personality will inevitably be restricted by the nature and society during commercial exploitation. Accordingly, the validity of “personal isolates” sales contract and commercial sexual service contract, commercial surrogacy contract is hard to get legal support, as against the public interest. However, personality elements of identification and dignity show themselves as information. Thus, these elements obtain relative self-sufficiency which means its existence do not rely on the entity and with information's characteristic of easy to be copied, shared and non-expendable, it is no doubt that they can be widely used and traded in commercial practice. Besides, as a product of nature and society together, these two special personality elements formed unique character value during public self shaping in social markets, that can affect the economic behavior of others. In view of this, most countries pay more attention to protect the property benefits under personality. Meanwhile, national courts tend to hold a positive attitude towards license contract of personality commercial exploitation. So, the remaining doubts and controversies come to be the scope and degree of the contract's subject matters and the nature of related rights.This thesis argues that personality right's competence should be completely separated, spiritual side should be kept in personality right while property side should be set up to be a new special type of property right—“the right of personality commercial exploitation” through legislation. As a result, this new property right would be in parallel with rights over things and intellectual property rights. Then, in order to achieve win-win between the private and public, it is necessary to improve the aforementioned new property right based on legislative procedure. First, clear the object scope of the right, counting in the name, portrait, voice and privacy(other than core privacy).Second, refine the content of the right, including the exclusive implementation right, license right and disposal right. Third, define the boundary of the right, covering protection period, non-commercial exemptions and exhaustion of rights. Thus, the typical contracts of personality commercial exploitation that derive from “the right of personality commercial exploitation” would obtain the effectiveness of the legal basis. In other words, license right corresponds to the license contract in the same way disposal right corresponds to the right transfer contract. Both of these two typical contracts are valid with the understanding that their content and program of the contract are limited.This thesis is divided into four parts:The first part is the definition of the basic concepts, such as personality, personality elements, personality rights aimed at clearing what the “personality” among personality commercial exploitation refers to.The second part is the brief description towards phenomena of personality commercial exploitation. To point out the legal protection source from the perspective of social life.The third part is to make detailed combing to the legal representative form of personality commercial exploitation, also setting forth the definition, characteristics, subject matter and legal attitude of each kind contract.The fourth part is depth analysis of interest game between the private and public upon the problems on effectiveness of two typical contracts, while claiming setting up “the right of personality commercial exploitation” as a special type of property right.