These problems are accompanied by China's copyright collective management system, and related cases have shown a rapid growth trend in recent years. In the trial of cases involving these issues, it is the goal of courts at all levels in China to solve disputes and promote the wider dissemination of works. A few days ago, at the "Seminar on Copyright Collective Management and Copyright Protection" jointly organized by the Copyright Department of the National Copyright Administration, the Intellectual Property Office of the Beijing Higher People's Court and the Chaoyang District People's Court of Beijing, representatives from copyright management departments, judicial organs, copyright collective management organizations, rights holders and other parties discussed the above issues in the field of copyright collective management. This seminar will further promote the improvement of the copyright collective management system, improve the judicial trial level of cases related to copyright collective management, and promote the standardization and scientificity of copyright collective management.
Collective management of copyright is an international copyright management system. The traditional way of copyright management is that the copyright owner exercises his own rights, or licenses others to use them and collects relevant copyright fees. With the development of modern society, the users and ways of using works are expanding day by day, and the copyright owner can't control all the ways of using works, which will inevitably make it more and more difficult for the copyright owner to manage works. In this context, the copyright collective management system came into being.
Compared with the mature collective management system of copyright in the world, the collective management system of copyright in China has only been in existence for a few years. 200 1 China's copyright law clearly stipulates the collective management of copyright for the first time, and the Regulations on Collective Management of Copyright was officially promulgated in 2006. At present, the copyright collective management organizations established in China include music copyright society of china, China Audio-visual Copyright Collective Management Association, China Character Copyright Association, China Photography Copyright Association and China Film Copyright Association.
The establishment of a copyright collective management organization is considered to be one of the important measures taken by our government to strengthen copyright protection. Wang Ziqiang, director of the Copyright Department of the National Copyright Administration, said at the "Seminar on Copyright Collective Management and Copyright Protection" that copyright collective management is one of the important symbols to measure the level of copyright protection in a country. Copyright collective management organizations not only protect the interests of authors, but also ensure users to legally spread their works and protect the public from enjoying the content in the cultural field in a timely and effective manner. In China, collective management of copyright is the most convenient and effective means to solve copyright disputes.
However, with the penetration of high-tech represented by informationization and networking into all fields of social life, there are many problems to be solved urgently in the field of copyright collective management, especially the cases related to copyright collective management organizations have increased greatly and the cases are complicated.
Chen Jinchuan, president of the Intellectual Property Court of Beijing Higher People's Court, said at the seminar that collective management of copyright is one of the important contents of copyright protection. Although China's copyright collective management system needs to be improved, insisting on giving full play to its role in daily management and better safeguarding it in judicial practice will play a very direct role in promoting the level of intellectual property protection and the wider dissemination of works in China.
Chaoyang District, Beijing is a high incidence area of copyright cases. As the administrative region with the largest population, the largest area and the fastest development of knowledge economy in the six districts of Beijing, Chaoyang District has not only CBD, but also many world-famous top 500 enterprises, as well as cultural media giants such as CCTV, cultural and creative industries represented by 798 Art District and sales market represented by Xiushui Market. Knowledge economy plays an important role in regional economy. According to Zou, vice president of Chaoyang District People's Court in Beijing, since the number of intellectual property cases accepted by the court broke through 1000 in 2008, the number of intellectual property cases accepted by the court has been increasing in recent years, and a large number of them are related to copyright collective management organizations. Zou said that such cases involve many legal issues and complicated legal relations. Especially in how to understand and apply the specific provisions of the Regulations on the Collective Administration of Copyright, the administrative departments and judicial organs sometimes have different views and understandings, and it is urgent to further clarify the standards and unify the judicial standards.
"The seminar on collective management of copyright and copyright protection focused on the difficult problems in collective management of copyright. The analysis and discussion of these issues will further improve the copyright collective management system, promote the judicial trial level of cases related to copyright collective management, and promote the standardization and scientificity of copyright collective management. " Zou believes.
Topic 1: Can information query results be used as ownership evidence?
The premise of information inquiry results as preliminary evidence is that the authorization contract is flawless.
Can the information inquiry system established according to Article 24 of China's Regulations on the Collective Administration of Copyright be used as preliminary evidence of ownership?
China's "Regulations on Collective Administration of Copyright" stipulates: "Copyright collective management organizations shall establish a rights information inquiry system for the rights holders and users to inquire. The rights information inquiry system shall include the types of rights managed by the copyright collective management organization, the names of works, audio-visual products, etc. The name of the obligee and the period of authorized operation. When the obligee and user inquire about the information about the rights managed by the copyright collective management organization, the organization shall give a reply. " According to the regulations, copyright collective management organizations should establish a rights information inquiry system for rights holders and users to inquire. Then, can the query results of this right information query system be used as the preliminary evidence to confirm that copyright collective management organizations enjoy rights?
Lin Ziying, president of the Intellectual Property Court of Chaoyang District People's Court in Beijing, believes that in judicial practice, judges often encounter this problem because the number of works managed by copyright collective management organizations is huge and the information on rights is huge and complicated. In this case, the collective management organization brings a lawsuit to the court on behalf of the obligee to claim rights. It is really difficult for the obligee to provide evidence separately on a case-by-case basis.
Ma Jichao, deputy director-general of China Audio-visual Copyright Collective Management Association, tends to take the information inquiry system as the preliminary evidence. However, he also believes that the premise of the inquiry system as preliminary evidence is that the authorization contract signed by the collective management organization and the obligee (member) is flawless.
Ping Liu, Deputy Director-General of music copyright society of china, said that all contracts signed between the association and the obligee (member) are standard contracts, and the obligee grants all the existing works to the Music Association, except those expressly reserved. However, the detailed information inquiry system of the Music Association is only open to members and potential users who are interested in signing contracts with the Music Association. He believes that it is unrealistic to require collective management organizations to be completely transparent about all information. As for whether the information inquiry system can be used as preliminary evidence of rights, Ping Liu thinks that it needs to be judged by the judicial department according to specific cases.
Jin Wuwei, director of the Legislative Affairs Office of the State Council, holds a negative attitude towards the information inquiry system as ownership evidence. He believes that the copyright collective management organizations voluntarily joined by the right holders are not the subject of rights, and their rights are all authorized by the right holders, and most of them are limited to some small rights. In this case, it is not appropriate to use the information inquiry system as ownership evidence.
Topic 2: How to grasp the obligation of preliminary examination?
In the lawsuit filed by the copyright collective management organization as the plaintiff, it is necessary to explain clearly how the rights are obtained.
The copyright collective management organization that has been granted the right to operate shall perform the obligation of preliminary examination. What obligations should be reviewed and to what extent?
At present, China's copyright collective management system takes the form of voluntary participation. For the right holders who join these collective management organizations, both parties are required to sign a contract to clarify the authorization content. This requires the copyright collective management organization to conduct a preliminary examination of the obligee when authorizing.
"In some cases, the collective management organization of copyright can't explain the specific circumstances of the right granted by the right holder to the organization's works, which should be caused by the collective management organization's failure to fulfill its review obligations." Lin Ziying said.
Hong, Asia-Pacific Director-General of the International Federation of Writers and Composers' Associations, said that internationally, most countries require copyright collective management organizations to review the source of rights. In the lawsuit filed by the copyright collective management organization as the plaintiff, it is necessary to explain clearly how the rights are obtained.
Yaping Zhou, chairman of Beijing Birdman Art Promotion Co., Ltd., said that in reality, some people even authorize works that they do not enjoy rights. This requires the copyright collective management organization to conduct corresponding review when authorizing.
Lin Tao, Deputy Director-General of China Photography Copyright Association, believes that copyright collective management organizations should conduct a preliminary examination of the identity of the obligee in the process of obtaining rights. Take this association as an example. When the obligee joins, it is required to show the original negative and original technical documents to the original work, and record the detailed information of the author, including his real name and pen name. Because of the large number of works of the obligee, it is sometimes impossible to register all of them, so it is required to reflect the most representative works in the authorization contract.
Topic 3: How to balance collective management organization litigation and individual litigation?
Individual lawsuits filed by members of collective management organizations will damage the confidence of legitimate users in collective management of copyright.
Article 8 of China's Copyright Law stipulates: "The copyright collective management organization may bring a lawsuit against infringement according to the authorization of the obligee. For rights holders who have not joined the collective management organization, the collective management organization cannot exercise their rights or bring a lawsuit on their behalf. " As a result, in reality, many users, such as KTV, may still face prosecution from members of non-copyright collective management organizations after paying relevant copyright fees and obtaining permission from collective management organizations. These obligees who file lawsuits are excusable if they are members of non-collective management organizations. The real headache is that some members of collective management organizations are also filing personal lawsuits. And such behavior is completely reasonable and legal.
Copyright collective management organizations generally object to the refusal of some rights holders to join collective management organizations and conduct individual lawsuits. They believe that it is fairer for the vast majority of rights holders to distribute benefits uniformly through collective management organizations. Collective management organizations' actions of bringing lawsuits against individual members are "abhorrent".
Ping Liu believes that the most direct and simple purpose of the copyright collective management system is to better safeguard the rights holders' interests and ensure that those rights holders who can't sue alone can get benefits. Even if the relevant lawsuit is filed, it is to urge more users to pay the license fee, and then distribute it to the right holder through the collective management organization, so as to establish a harmonious authorization mechanism between the right holder and the user and resolve the contradiction. If the obligee files a lawsuit alone, especially the members of the collective management organization file a lawsuit alone, it will undermine the confidence of legitimate users in the collective management of copyright, and even impact the collective management system of copyright to a certain extent.
However, there are more and more such cases in reality. Among them, Ye Jiaxiu, a famous musician from Taiwan Province Province, China, has attracted wide attention in China. In recent years, Ye Jiaxiu has filed a series of copyright infringement lawsuits in China, including 1 13 lawsuits in Hubei alone, all of which are aimed at KTV, a large local company, and paid the copyright license fee to the copyright collective management organization. Ye Jiaxiu filed these lawsuits, which were almost invariably supported by the courts. The defendant was either awarded tort compensation or reached a settlement with him and paid him a large amount of compensation.
What makes the copyright collective management organization indignant is that in the lawsuit filed by individuals in Ye Jiaxiu, the compensation amount is higher than that of the copyright collective management organization in similar cases. The copyright collective management organization agrees to substantially increase the amount of compensation for the lawsuit filed by the copyright collective management organization and reduce the amount of compensation for the individual lawsuit.
Wang Huapeng, director-general of China Audiovisual Copyright Collective Management Association, directly pointed out that there was a litigation agency behind Ye Jiaxiu, which planned and organized a series of lawsuits. If this situation is allowed to continue, some powerful people will follow suit and lead to explosive growth of lawsuits. Wang Huapeng believes that this kind of behavior should be restricted in judicial practice.
Zhou Jianchao, general manager of China Record Company, said that the judicial department should encourage collective management of copyright, and should award a higher amount of compensation for lawsuits filed by copyright collective management organizations; The amount of compensation should be reduced for related lawsuits filed by individuals.
Topic 4: Is the foreign-related mutual representation agreement valid?
Because it is evidence formed abroad, it is very complicated to determine the content of the foreign-related mutual representation agreement.
How to ensure that the rights obtained through the "mutual representation agreement" stipulated in Article 22 of the Regulations on the Collective Administration of Copyright are legal and effective?
Article 22 of China's Regulations on Collective Administration of Copyright stipulates: "Foreigners and stateless persons can authorize China's collective administration of copyright to manage their copyright or copyright-related rights in China according to law through similar overseas organizations that have signed mutual agency agreements with China's collective administration of copyright. The mutual representation agreement mentioned in the preceding paragraph refers to the agreement between China's copyright collective management organization and similar overseas organizations to authorize each other to carry out collective management activities in their country or region. The mutual agency agreement signed by the copyright collective management organization and similar overseas organizations shall be reported to the copyright administrative department of the State Council for the record and announced by the copyright administrative department of the State Council. "
Court experts believe that when the court hears a case, if the work involved is the work of an overseas author, in the process of reviewing the plaintiff's rights, it is necessary to review the mutual representation agreement between the domestic collective copyright management organization and the overseas collective management organization, the contract between the overseas collective management organization and the author, the author's identity certificate and other evidence. At this time, because the evidence related to the author's identity may all be evidence formed abroad, the plaintiff uses domestic publications abroad as evidence to prove the author's identity. In this case, the identification of the author's identity and rights is more complicated and cumbersome.
Lin Ziying believes that in cases involving mutual representation agreements as evidence, domestic copyright collective management organizations should make clear the contents of the agreements when signing relevant agreements with similar foreign organizations. (Intellectual Property News author Zhu Wenming)