| The innovation of information technology has given birth to the epoch-making progress of music communication technology,and the digital music trading mode has been constantly updated along with the change of communication technology.As a new business mode born from the inhibition of piracy ecology,the exclusive copyright trading type of digital music has the dual effects of promoting copyright legalization and bringing competition risks.As an agreement signed by the music copyright owner and the digital music service provider with the content of "exclusive agency+sublicense" of the digital music information network transmission right,the exclusive copyright mode of digital music should belong to the scope of party autonomy in the market transaction,and does not have the "original crime" of harsh.The antimonopoly law should keep a modest attitude in regulating the possible competition risks,and consider the particularity of Internet externalities,bilateral markets,zero price competition,platform competition,cross-border competition and other factors in judging the specific elements such as abuse of intellectual property rights,related markets,market dominance,vertical non price restrictions,and ignore these characteristics when analyzing according to the existing norms Special factors will cause the conclusion to be too one-sided and inconsistent with the reality of industrial development,so Article 55 of the anti-monopoly law and other relevant anti-monopoly norms cannot be applied mechanically to intervene.At the same time,the exclusive copyright mode of digital music is deeply rooted in the Chinese music market,which is very unique.At present,the main problem of the music industry in China is still the lack of creative incentives.Therefore,we should make targeted countermeasures according to the actual development of the industry in China,rather than directly learn from the experience of other countries in the regulation of digital music market by copyright trading management mode and anti-monopoly law.The protection of the new business model should be decided by the legal rules and the market competition demand,and the legal level should return to the field of copyright protection to solve the problems,that is,on the basis of the principle of "maintaining the copyright order",we should develop the business model that does not violate the prohibitive provisions,and encourage the diversified business model that promotes the free market competition and is conducive to the free choice of consumers.The digital music communication industry should also establish self-discipline norms,and the national copyright regulatory authorities should also promote the digital music works to be sublicensed and establish relevant guiding opinions through timely specific administrative actions,so as to maintain the operation order of the copyright market.In addition to the introduction and conclusion,this paper is divided into six chapters.The first chapter mainly clarifies the concept and legal nature of exclusive copyright of digital music and the business model of digital music works trading in the market.By reviewing the development history of digital music and combing the various types of digital music copyright trading modes,it is concluded that exclusive copyright belongs to one of the exclusive licensing modes in the digital music copyright trading mode.The main concept is that the digital music service provider or operator hopes to obtain the authorization of the information network transmission right of specific music works(including lyrics and music),and to grant the authorization Engage in subsequent non-exclusive sublicense.There is a dispute between exclusive use theory and exclusive agency theory in its legal nature.By comparing the concepts of exclusive license and non exclusive license stipulated in the copyright law,it can be concluded that exclusive copyright should be the result of the autonomy of both parties,exclusive is not exclusive in the literal sense,and its nature is closer to the exclusive agency of information network dissemination right of musical works.At the same time,after reviewing the development of exclusive rights of digital music in China,we can find that the mode of "exclusive rights+sublicense" has become the normal operation of music service providers in the current market.In chapter two,on the basis of defining the concept,nature and operation mode of exclusive copyright of digital music and digital music in Chapter one,it is discussed that in the operation of two-level distribution market,due to the advantage of capital and operation,the prior digital music service providers obtain more exclusive rights of music works,thus forming Matthew effect,and the phenomenon of delay in the process of sublicense leads to the opening of the industry At the beginning,the digital music service providers who have obtained exclusive copyright are questioned by monopoly that copyright concentration forms a competitive bottleneck.In this context,through the analysis of Article 55 of the anti-monopoly law as the legal basis to intervene in the supervision of monopoly cases in the field of intellectual property,it is found that the understanding of "abuse" of intellectual property in the article is quite controversial,which is mainly due to the indicative and too descriptive legislative language.However,the value function of Article 55 as a conditional exemption clause of monopoly of intellectual property does not lie in giving specific criteria to judge whether intellectual property is abused,but in guiding the judges to judge the specific abuse behavior that has been typed in the anti-monopoly law.The monopoly risks caused by exclusive rights of digital music are mainly divided into abuse of market dominance and vertical non price agreement restrictions.The illustrative value of Article 55 also shows that there is a large discretionary space for the judgment of the anti-monopoly law on the abuse of intellectual property rights.In this case,we should take a prudent attitude when analyzing the monopoly risk of the existing new business model,that is,it is not suitable to apply Article 55 of the anti-monopoly law alone for judgment.In the third chapter,on the basis of the different types of monopoly risks caused by the former chapter,the specific elements of determining whether exclusive copyright constitutes abuse of market dominant position are screened.In the relevant market definition,due to the special factors such as zero price competition,platform competition and cross-border competition of Internet enterprises,the method of defining the digital music related market according to the existing laws and regulations will lead to a smaller range,while the relevant regional market will lead to a larger result if it is defined as a global market according to the Internet communication mode.Similarly,in the determination of market dominance,if the determination of market share adopts the method of digital proportion presumption,it will ignore the characteristics of high industry concentration and rapid share change in the digital music market,and it is also easy to ignore that the larger market share may be formed based on the lower transaction cost and high-quality products rather than market dominance In the analysis of barriers to entry,the existing norms lack of consideration on the generally low threshold of digital music market entry under the Internet environment,and the free mode in the digital music market has relatively weak barriers to the entry of competitors;when judging the degree of market dependence,the required sublicense behavior of music service providers will be weakened,and the service providers will be identified as having a key facility status and constitute the market The analysis of the effect of field obstruction and the principle of key facilities may fail at this time.In addition,in recent years,the competition of digital music market is also changing from chasing exclusive copyright to social music,pan entertainment music and social communication,which is gradually reducing the dependence on the accessibility of music works.Therefore,it is difficult to determine that the exclusive copyright of digital music constitutes abuse of market dominance.In chapter four is to examine whether exclusive copyright constitutes a vertical non price agreement restriction standard.The principle of its own violation can only regulate the specific violations recognized by law.The exclusive copyright licensing mode of digital music can not directly apply its own violation principle because of the lack of evaluation basis of legal illegality.At the same time,the principle of its own violation is simple in nature,so it is easy to ignore the complexity of Internet economic behavior when judging the illegality Therefore,it is not suitable to apply its own illegal principle for judgment.The principle of reasonableness has the characteristics of considering the advantages and disadvantages of economic behavior,which is suitable for the analysis of the vertical non price agreement nature of the exclusive copyright licensing of digital music.However,through the analysis of various elements of the principle of reasonableness,it is found that the so-called competitive obstacles brought by the exclusive copyright are far from the reduction of "free riding",the improvement of after-sales service,the maintenance of market stability,the protection of copyrighted works and At the same time,exclusive copyright licensing forces other unauthorized digital music service providers to actively explore and change the diversified business development model,which forms a competitive pattern in the market to meet the different needs of different consumers.Therefore,after judging the advantages and disadvantages of the vertical non price agreement formed by the exclusive copyright licensing through the reasonable principle,it is concluded that it should not be deemed as the limit of the vertical non price agreement.The fifth chapter is to sort out the way of copyright trade and protection of music works in the developed countries or regions such as the United States,the European Union,South Korea and Japan,as well as the anti-monopoly cases and law enforcement in the music market,so as to provide a factual reference for whether and how to learn from them.In fact,it is found that the monopoly risks caused by the exclusive copyright licensing mode of digital music in China show its unique particularity in the world.The trading and management mode of music works in other countries and regions,as well as the regulatory experience of anti-monopoly law on different types of monopoly cases in the music market,all have their own countries or regions With the distinct brand of the zone,China should not directly adopt the reference mode of "borrowing doctrine",but should base on the development status of Internet industry and the development orientation of industrial policies,and take local consideration of the way of digital music copyright transaction protection and many factors whether the anti-monopoly law is involved or not.In chapter six,based on the analysis of the concept,nature,transaction mode,legal basis and specific elements of anti-monopoly law,and the experience of the music copyright market and anti-monopoly regulation in the United States,Europe,Japan and South Korea,the author puts forward the current situation of the monopoly problems caused by the exclusive copyright mode of digital music,as well as the rules for cognition and evaluation It is perfect.The problem that exclusive copyright of digital music can cause monopoly risk of digital music market is that the Internet itself has the characteristics of cross network externality,bilateral market,etc.,which makes users have a lock-in dependence on digital music service providers who have a large number of music due to the exclusive copyright authorization,which makes them achieve the scale effect of the platform with the development of Internet technology.Based on the conclusion that the exclusive copyright agreement of digital music belongs to the autonomy of contract meaning,the rise of music platform and its competitive advantage are the result of free competition in the market and have no accountability;on the basis of rectifying the cognition of the relationship between the exercise of intellectual property rights and the dominant position in the market,we should recognize that intellectual property rights and market forces can coexist,and uphold the anti-monopoly law to exercise intellectual property rights The evaluation should be equal to the evaluation of the exercise of other property rights,with full consideration of specific factors,specific cases and market conditions such as exclusivity of intellectual property rights,vulnerability under the network environment,legal protection purpose of intellectual property rights,market pricing characteristics,etc.,and should not be directly judged to have a dominant position in the market because it is authorized by intellectual property rights;exclusive copyright trading mode The copyright agency authority legally obtained by the music service provider in China,carries out free trade with reasonable price in the market,and the copyright authorization effect has the appearance of "fair" trade in the market and the "legitimate reason" embodied in the exclusive copyright trade contract in the process of transmitting from the music distribution market to the communication market,which can not be considered to have the attribute of abuse;at the same time,Based on the characteristics of many market transactions formed in the Internet environment,the identification of abuse concept,relevant market,market dominant position and other factors is more complex.If we use the original identification method,we will get too arbitrary results of interest segmentation,and even attack the new business model.Therefore,the anti-monopoly law should keep a modest attitude towards this issue;at the same time,we should not ignore the exclusive copyright in the China's music market has its own characteristics,which can be directly used for reference by foreign music market operation and regulation experience.We should take corresponding regulation measures based on the actual development of China's music industry.As far as China is concerned,the solution to this problem should return to the field of copyright protection.The administrative department of copyright should supervise the license period and license fee of music works,so as to make the transfer license terms of exclusive copyright licensing more effective.The exclusive copyright licensing mode should be fully tested in the free competition market environment,and the music market should also be shaped The industry's internal self-discipline regulations respond to this issue. |
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