On Right Of Action Of The Licensee Of Copyright

In order to reduce the cost of rights changes when rights holders and users conduct copyright transactions,the copyright collective management organization emerged as an intermediary service for rights holders and users.However,in practice,the operation status of copyright collective management organization is very worrying,due to the distribution of license fees and the charge of management fees,it has repeatedly been questioned and accused by rights holders and users.The licensing channels provided by it have not been reached their expectations.In view of the dissatisfaction and distrust of the copyright collective management organization,the copyright holder attempts to realize the large-scale licensing and rights protection of copyright in the form of sub-licensing,which is manifested in the following: the right holder permits the licensee to use the copyright while allowing the licensee to sub-license and file a lawsuit or submit to arbitration in the name of the right holder.Obviously,this kind of licensing method is very similar to the collective management in the representation,in this context,the copyright licensee's right of action determination is quite impacted,and some courts will be wrongly identified the licensee as "illegal collective management organization",thus denying the qualification of the subject of litigation.Based on this,in order to clarify the issue of the licensee's right of action under the background of collective management of copyright,this paper first defines the connotation and extension of the licensee from the difference between the two,points out the difference between collective management and licensing,and secondly,with the help of the nature of the license use right,the theory of litigation rights,the theory of litigation agreement makes a legal analysis of the right of action of copyright licensees,and finally puts forward my own suggestions on the perfection of the right of action of copyright licensees in China.On this basis,the full text is divided into four parts except the introduction.The first part: raise question.Taking the representative cases:The Shengying case and the Dade case as the starting point,combing the relevant cases,summing up the dispute between the licensee's sub-license and the collective management representation behavior,the court disputes over its determination of the right of action: the difference between the licensee and the collective Management organization,and the source of the copyright licensee's right of action.The second part: the definition of copyright licensee.This part first analyzes the constituent elements of the collective management of copyright through the interpretation of law and the interpretation of the system,and points out that the difference between the licensee and the collective management organization is whether it has the substantive rights,the size of the authorized rights holder and the way of collecting and transferring the user fees.Among them,whether or not to have substantive rights is the most essential difference between the two,the licensee obtains the right to use the license through the license relationship,has the entity right,and the collective management organization only obtains the administrative right.Therefore,the boundary between the licensee and the collective management organization is clear,and the sub-license also has the living space which is different from the collective management of copyright.On this basis,the article also expounds the legitimacy of the licensee's sub-licensing behavior based on the private self-government right of the sub-license and its suppression of the monopoly of the collective management organization of copyright.The third part: the legal analysis of copyright licensee's right of action.The 119 th article of the Civil Procedure Law of China stipulates that the plaintiff of the indictment must be the subject with direct interest in the case,and the academic circles divide it into two categories on the basis of drawing lessons from the theory of the suitability of the parties in the Civil law system: first,the subject of the substantive law claim for the legal relationship of the requesting court;second,the litigation act.First of all,this paper analyzes the theory of the nature of the licensed use rights,and holds that the franchise of the exclusive licensee and the exclusive licensee belongs to the " Class use rights" or "the use of beneficial intellectual property rights",has a very strong exclusivity,has the right of claim in the substantive law;the license use rights of ordinary licensees are neither creditor's right nor property,and its exclusivity is weak,but ordinary licensees have the right to be inviolable,and considering the timeliness of copyright,if the ordinary licensee is not given an independent right of action,their rights are likely not to be protected in a timely manner,and therefore should also have the independent right of action.Secondly,in the litigation act,the licensee's right of action is based on the validity of the agreement of the right of action.This paper draws the conclusion that the agreement of the right of action does not produce legal effect from the public law nature of the right of action and the disadvantage of the right of action agreement.Finally,it points out the deficiency of the legislative and judicial status of the right of action of copyright licensees in China,and indicates that the lack of legislation and the correction of judicial application also set the stage for the perfection of the fourth part.The fourth part:the perfection of the right of action of copyright licensees in China.First of all,we should critically examine the authenticity of the copyright license contract,strictly prevent the practice of collective management under the guise of permission,in order to circumvent the regulation of article sixth of the Regulations on collective administration of copyright.Secondly,propose to amend article 25 th of the Regulations on the implementation of copyright law in China to “enter into a license use contract with the copyright owner,shall be made public to the administrative department of Copyright and shall not,without publicity,confront a third party”,that is,establish a system for registering the registration of copyright license contracts,on the one hand,which can support the doctrine of usufruct of intellectual property rights;On the other hand,which can guarantee the legitimacy of the licensee's right of action.Also,we should add a direct provision on the right of action of the copyright licensee,in addition to the exclusive licensee,and give the exclusive licensee and the ordinary licensee to initiate proceedings alone.