At present, China has not yet promulgated laws and administrative regulations specifically for digital publishing, and the Copyright Law has not regulated the behavior of digital publishing. In practice, it is necessary to use the basic laws and regulations in the publishing field, such as the Regulations on Publishing Management and the Interim Provisions on Internet Publishing Management, to regulate the digital publishing behavior. Therefore, with the rapid development of digital publishing, it is necessary to improve the norms of digital publishing behavior at the level of legal construction. On the one hand, taking the third revision of China's copyright law as an opportunity, the attributes of digital publications and the protection methods of digital publications are clearly defined in the legal provisions; On the other hand, we will promote the introduction of special laws on digital publishing, and make more detailed and proper arrangements for the meaning of digital publishing behavior, the scope of rights of digital publishing rights holders, and special issues involved in digital publishing.
1. Define the meaning of "digital publishing"
The difference between digital publishing and traditional publishing is finally reflected in the change of value-added mode. The realization of traditional publishing value needs the help of traditional material production mode; The realization of digital publishing value is directly reflected in the process of digitalization and networking.
This way of digital publishing, which gradually gets rid of the material carrier and physical space, has led to changes in the acquisition, production and distribution of publishing behavior, and also directly broke through the traditional concept of publishing. To define the concept of "digital publishing" in law, we should pay attention to the following elements: first, digital publishing should be a legal publishing act, that is, the essence of digital publishing should also be publishing, and it should abide by the legal provisions in the field of publishing in China, including the qualification requirements of publishing subjects, the requirements of publishing review and the restrictive provisions of publishing content; Secondly, the digital publication formed by digital publishing should be an edited work with a specific form, that is, the digital publishing behavior is different from the general Internet service behavior and must produce works recognized and protected by the copyright law; Finally, the concept of digital publishing must highlight the characteristics of digital technology and digital communication means, especially the digital characteristics of content form, content production and content communication. Therefore, the author believes that referring to the concept given by the General Administration of Press and Publication in Several Opinions on Accelerating the Development of China's Digital Publishing Industry, "digital publishing" can be defined as "a new publishing method that uses digital technology to edit and process content to form digital works and spread them through digital means."
2. Define the properties of Digital Publication
At present, the development direction of digital publishing is from simple digitization of works to digital composite publishing, and multimedia expression means has become the development trend of digital publishing. However, the legal nature of multimedia has been unclear, and the issue of copyright protection has been controversial. The so-called multimedia refers to the computer system as the core, which integrates data, text and graphics processing, audio and communication technologies, so that it can express, communicate, analyze and process text, data, graphics, images and sounds simultaneously or alternately.
In short, multimedia should have the characteristics of multi-element combination, information technology assistance and interactive use, and its words, pictures, sounds and other elements can be used as the types of works protected by copyright law. However, for the synthesis of these elements, the copyright law does not clearly stipulate its category, and it is difficult to find suitable types for some publications that are digitally published by multimedia. Quite a few scholars believe that multimedia should be defined and protected as a new type of works. This is reflected in the legislation of some countries or regions, such as the quantum media law in Japan and the information and communication service law in Germany.
In the process of revision and promotion of China's copyright law, we might as well add "multimedia works", a brand-new form of works. Before the law is amended, the definition and protection methods of multimedia works can be clarified through the introduction of administrative regulations, and digital publications conforming to the nature of multimedia can be included in the scope of "other works stipulated by laws and administrative regulations". Before the law is amended and the administrative regulations are promulgated, the multimedia digital publications can be initially protected by referring to the provisions of the Copyright Law on "compilation of works".
3. Clarify the rights of "digital publishers"
Digital publishers are disseminators of digital content, including traditional publishers, technology providers and platform providers, which play a vital role in the formation and dissemination of digital content. Until the arrival of the digital age, communicators have never participated so deeply and played such a big role in the realization of copyright value and function. As mentioned above, digital publishers, as investors in capital, channels and technology, and as an important party in the process of digital publishing, participate in the production, dissemination and value realization of digital publications. However, inconsistent with the role played by digital publishers in the formation of digital works, China's neighboring rights system that specifically protects communicators does not provide protection for digital publishers, and even the protection for traditional publishers is relatively limited-only the publisher's exclusive right to layout design is stipulated. In China's legislative practice and most scholars' ideas, the exclusive right to layout design should be limited to protecting the entire printed version without involving the original graphic logo.
Under the condition of digital publishing, the use of specific elements in digital publications is relatively convenient, digital streaming media has become the mainstream of publishing, and digital publications often increase interactivity. When a digital publication enters a user's terminal, the layout of the digital publication will be automatically adjusted according to the terminal's situation (such as the size, resolution and shape of the terminal screen), and the user can also adjust the layout of the digital publication according to his own usage habits. In this case, if only the "overall layout design" is provided to digital publishers, in the process of amending the Copyright Law, we should expand the scope of rights of digital publishers and give them the following rights besides the overall "exclusive right of layout design": First, compound publishing rights, that is, digital publishers have the right to prohibit others from making publications in other digital formats based on their digital publications; The second is the right of content re-extraction, that is, the digital publisher has the right to prohibit others from using all or the core content of digital publications in other publications in a substantive and reproducible way; The third is the right to reuse, that is, the digital publisher has the right to prohibit others from copying and spreading all or the core content of digital publications without permission.
(B) improve the digital copyright licensing system
1. Improve the quasi-statutory licensing system.
The statutory licensing system is an involuntary licensing system, which is an important supplement to the licensing system in the process of copyright acquisition, and is more reflected in the consideration of economy and efficiency. As Posner said, in general, the market is the most effective means to realize the optimal allocation of resources, but when the cost of market decision-making is higher than that of legal decision-making, the problem of resource allocation should be solved by the legal system.
The emergence of legal licensing system is precisely to solve the mismatch between copyright protection and the realization of copyright value, and to maximize the benefits through the compulsory intervention of national laws. The legal licensing system of copyright in China is clearly stipulated in the Copyright Law.
Articles 23, 33 (2), 40 (3), 43 (2) and 44 of the Copyright Law stipulate the compilation and publication of textbooks implementing the nine-year compulsory education and the national education plan, the statutory permission of publishers' rights, performers' rights, producers' rights of audio and video recordings and players' rights, etc. And grant the relevant communicators the right to use the work without the authorization of the right holder, but they need to pay the corresponding fees. Among these five legal licenses, one is special, that is, if the author reserves it by way of prior statement, the legal license of publishing right will not apply. Some scholars call this incomplete statutory licensing system "quasi-statutory licensing system", while others think it should be regarded as "implied licensing system". In this paper, for the convenience of discussion, the author calls it "quasi-legal licensing system".
According to the characteristics of massive license demand and value realization of digital publishing, we should broaden the applicable occasions and types of works of the "quasi-statutory license system" for digital publishing rights, and improve the forming methods and applicable conditions of license conditions. First of all, the application scope of the "quasi-statutory licensing system" should be broadened, not limited to paper, but should realize the two-way intercommunication between paper and digital media, and realize the mutual reprinting and editing license between paper and digital media. In other words, the "quasi-statutory licensing system" under the condition of digital publishing should be suitable for all kinds of situations in which paper media, digital media and paper media are transforming into digital media. Second, expand the types of works to which the "quasi-legal licensing system" applies. The existing system is only applicable to graphic works such as written works. For digital publications in the form of multimedia collection, it will be an inevitable requirement to extend this kind of reprinting and editing behavior to audio recordings, video recordings, photographic works, computer software and other works to truly play the value of "quasi-legal licensing system". Thirdly, we should learn from the publication announcement system to make the determination of authorization conditions more open and fair, that is, it is clearly stipulated in the law that digital publishers should announce the works to be provided, their authors and the standards to be paid before providing works. Within 30 days from the date of announcement, if the copyright owner does not agree to provide it, the digital publisher shall not provide his work; If the copyright owner has no objection within 30 days from the date of announcement, the digital publisher may provide his works and pay remuneration to the copyright owner according to the standards of announcement. After the digital publisher provides the works of the copyright owner, if the copyright owner does not agree to provide them, the digital publisher shall immediately delete the works of the copyright owner and pay the remuneration to the copyright owner during the period of providing the works according to the published standards. If the copyright owner of the work cannot be found, remuneration may be paid to the relevant copyright collective management organization. "Finally, the applicable conditions of the quasi-statutory licensing system should be limited, especially it should be made clear that the statutory licensing system can only be applied after the profit cycle of the first publication, so as to ensure that the economic interests of the previous publishing behavior are fully guaranteed, and at the same time, it is necessary to ensure that the involuntary licensing behavior of the statutory licensing system will not excessively infringe the interest boundary of the authorized voluntary licensing behavior. However, the determination of specific time limit should be fully demonstrated. Some scholars think that half a year is appropriate, but I think it can be shorter.
2. Advocate knowledge sharing license agreement
There are often two ways for obligees to obtain rights, one is through voluntary license, and the other is through involuntary license such as legal license and compulsory license. At present, China's involuntary licensing system for digital publishing is lagging behind and its application conditions are harsh. How to broaden the channels and ways of authorization and innovate the ways of authorization will become the only way to solve the contradiction between the vigorous content demand of digital publishers and the low efficiency of authorization at this stage. There are three existing modes of right authorization: direct authorization, indirect authorization and implied license. Most of these authorization models are closed authorization models, which leads to the long-term state of waiting for a price, while the right demanders are faced with information asymmetry without rice. The above relationship between the obligee and the demander is not conducive to the development of licensing activities and the prosperity of copyright transactions.
In order to solve the above problems, a creative commons license agreement (CC agreement for short) appears in people's field of vision, which brings good news for knowledge sharing and dissemination in the digital age and provides a good reference for exploring the authorization mode of digital publishing. In a broad sense, CC agreement is an authorized offer model, which consists of a series of copyright licensing agreements issued by knowledge sharing organizations in June 5438+February 2002 for free use by the general public. The purpose of this agreement is to help literary creators, artists, songwriters and other creators to mark the right status of their works and remind other users of their own scope of use. This agreement consists of signature, non-commercial use, prohibition of deduction and sharing in the same way. According to the specific rules, there are six core licensing agreements in CC protocol, namely, signature-non-commercial use-no deduction (by-nc-nd) and signature-non-commercial use-sharing in the same way (by-nc-sa).
Take the agreement of "by-nc-nd" as an example, it means that as long as the author's name is indicated and a link is established with the author, others can legally use and share the work, but users cannot modify or use the work in any form. After the author has created his work, he can choose any template provided by CC protocol. After the selection is completed, the system will generate three kinds of license agreements, namely, ordinary text, legal text and metadata, which will be provided for the author to use in different situations.
Since the release of CC license agreement in 2002, knowledge sharing organizations have revised it three times. At present, the latest version (CC protocol version 3.0) was updated in early 2007, and the public discussion of version 4.0 is officially underway.
At the same time, the localization of CC protocol is also advancing. On March 29th, 2006, Chinese mainland version 2.5 CC series license agreement was released in Beijing, and the official website of CC Chinese mainland Project was also launched.
Nowadays, portals such as Netease, Sohu, Tencent and professional video websites have successively opened up "open classes" platforms on web terminals or mobile phones. These open class platforms provide a large number of free educational resources provided by many famous schools including Yale, Oxford and Stanford, which greatly facilitates the public to obtain high-quality and low-cost learning resources. The resources used by these open class platforms are Open Educational Resources (OER) released by foreign countries under CC protocol. It can be said that the introduction of CC agreement into China has affected the cultural consumption life of Chinese people and will contribute to the prosperity of cultural industry in China. Practice has proved that advocating an open copyright self-help agreement in the process of digital publishing and adopting CC agreement, a license agreement for knowledge sharing, will effectively protect the author's copyright and realize its value.
3. Give collective management organizations extended management rights.
Digital publishing has brought a large number of frequent copyright transactions. This high-frequency and massive demand for copyright authorization urges people to pursue copyright collective management organizations. Seeking the breakthrough of copyright collective management system has become the main way for people to solve the dilemma of digital publishing authorization. "Collective management of copyright refers to the unified management of rights that are inconvenient or difficult for copyright owners by some social organizations. It is a social behavior that authorizes users of works to use the works of members of the organization through a collective management organization representing the copyright owner, and collects royalties and distributes them to the copyright owner. "
There are three main aspects of collective management rights in copyright laws of various countries: first, the right holder authorizes the collective management organization to exercise its rights; Second, the Copyright Law stipulates that certain rights must be exercised by collective management organizations; The third is the extended collective management.
In China, the Regulations on the Collective Administration of Copyright gives copyright collective management organizations the right to sign licensing contracts, collect and transfer royalties and bring lawsuits on their behalf. These copyright collective management functions derived from authorization will be difficult to meet the actual needs under the condition of digital publishing. Introducing extended collective management has become the only way for copyright collective management organizations to further improve their functions, for rights holders to fully realize the value of works and for publishers to realize their rights more efficiently.
"Collective management in a broad sense means that collective management organizations not only have the right to license members' rights, but also can license non-members' rights suitable for collective management according to law. Non-members can disagree with the authorization of the collective management organization afterwards, thus prohibiting users from using it. "
The establishment of the extended collective management system can give the copyright collective management organization the right to sign a package of effective license contracts with users without the authorization of non-members, but it should distribute remuneration to non-members. If non-members explicitly refuse this extended management afterwards, this management will be invalid. This extended management system is strictly restricted, and the obligee has a relatively smooth "exit mechanism", so there is no need to worry that the copyright collective management organization will damage the obligee's rights or make the collective management organization form an unreasonable monopoly position. Under the condition of digital publishing, in the face of massive information dissemination, instant dissemination speed and broad dissemination space, if the content authorization still relies on the one-to-one prior authorization mode, the advantages of the collective management system will disappear. In the face of the blowout environment of works creation, it is naturally impossible for collective copyright management institutions to obtain comprehensive rights in advance, but users still need a risk-free authorization channel that can sign a package agreement under the condition of digital publishing. To say the least, they can find a channel to legally use works by paying royalties to specific subjects to reduce the risk of publishing infringement. In this case, it is particularly important to give copyright collective management organizations the right to extend the management of non-member rights. Moreover, as the only national non-profit copyright management organization in a specific field, it should undertake the collection and transfer of non-member remuneration. Of course, the establishment of the extended management system is conditional and must be based on a relatively perfect collective management system. On the one hand, the collective management organization must be fully representative and run well. On the other hand, the collective management mechanism is relatively perfect, such as the establishment of a mature license fee collection and distribution mechanism, perfect digital processing technology and high-level international coordination ability.
Therefore, at the beginning of brewing the extended collective management system in China, it is necessary to introduce a more detailed collective management system for copyright, and make more specific provisions on copyright authorization, collection and distribution of royalties, so as to establish a more perfect collective management system.
(C) improve the digital copyright transfer system
The appearance of digital publishing perfectly realizes the combination of technology and art, and also provides a platform for energy release for the integration of the two, so that traditional publishing content has obtained a brand-new value-added channel. "The wealth and commercialization of the property rights of works means the inevitability of interest distribution and transaction; The dissemination and practicality of the property rights of the works reflect the feasibility of the transaction. "
Digital publishing itself relies on digital technology and digital platform, thus prospering the digital copyright transfer market. In the process of digital copyright appreciation, digital copyright transfer is an important way to realize it. Perfecting the copyright transfer of publications and promoting the prosperity of the copyright transfer market will become a problem that must be paid attention to in constructing the legal system of digital publishing in the new period.
1. Promote the marketization and informatization of public services for copyright transfer.
It is generally believed that "copyright public service is a variety of services provided by copyright administrative organs or other organizations authorized by the government for the purpose of safeguarding public interests", and the institutions providing the above services are copyright public service institutions, which generally include copyright collective management organizations, copyright associations, work registration institutions, copyright agencies, copyright protection centers and copyright trading centers. Copyright public services can include trade aid, dispute settlement, information support, education and publicity. China's copyright public service started late, and there are few public services specifically for the transfer of digital publishing copyright. Perfect copyright public service can greatly improve the efficiency of copyright transfer, reduce the risk of copyright transfer, and then greatly promote the prosperity of copyright trading market.
Therefore, high-quality copyright public service, sound copyright intermediary service institutions and perfect copyright public service system will effectively optimize the copyright trading environment. To improve the copyright public service, we need to do the following two things according to the characteristics of digital publishing:
On the one hand, improve the market-oriented operation mechanism. The "Twelfth Five-Year Plan" clearly points out that the prosperity and development of cultural undertakings and cultural industries should "persist in grasping public welfare cultural undertakings and commercial cultural industries on the one hand, and always put social benefits in the first place to achieve the organic unity of economic and social benefits." Macroscopically, by pushing some competitive and operational digital rights public service projects to the society, we can save money and invest in other basic digital rights public services. On the non-profit basis, multi-agent competition mechanism and diversified incentive mechanism can be introduced to improve service quality, innovate service content and expand service targets. At the micro level, modern management concepts and market-oriented management models are introduced into copyright public service organizations, and the board system is introduced into their governance mechanisms. The establishment of the Council has changed the traditional practice that public service institutions are managed and operated by the government as a whole, liberated the government from its busy daily work, made the management of public service institutions develop in a more professional and efficient direction, and greatly improved the organizational governance mechanism and management efficiency of public service institutions. "
On the other hand, improve the information operation mechanism. Under the condition of digital publishing, copyright is facing great challenges and copyright services are also facing great changes. First, the demand for copyright services has changed. Facing the demand of massive information and rapid dissemination of digital publishing, the types of copyright rights are complex, the subject of rights is enlarged, the probability of infringement is increased, and it is difficult to obtain evidence on the Internet. The basic copyright services undertaken by copyright public service institutions will be greatly extended, and a large number of brand-new copyright services will emerge. Only by using the operation mechanism of copyright informatization can we effectively face the impact of informatization on copyright services. On the other hand, the way of providing copyright services has changed. Relying on the Internet for copyright publicity and education, trading platform construction and information disclosure and transmission not only greatly reduces the cost and improves the efficiency, but also facilitates the participation of obligees and social supervision. Therefore, in the process of establishing copyright public service institutions, we should take the opportunity of the country's promotion of e-government development, actively put information online, and promote paperless, electronic and information-based operation, so as to facilitate the development of digital copyright trade.
2. Build a transfer platform and extend the service links and levels.
The huge transaction risk brought by information asymmetry greatly limits the further expansion of the copyright transfer market. For digital copyright transfer, we need to build a more transparent and reliable copyright transfer platform to provide more comprehensive copyright information and a safer trading environment for both parties, thus reducing trading risks and improving trading efficiency. The copyright transfer platform should be able to provide "four links and two levels" services to meet social needs.
The services provided by the copyright transfer platform run through four links: copyright creation, application, protection and management. In the creative process, the service content is mainly to encourage creation, and to stimulate the author's creative enthusiasm by creating an atmosphere in which the whole society advocates knowledge and protects intellectual property rights. In the application process, we mainly provide convenience for the use of copyright through trading platform operation and copyright evaluation, and realize the comprehensive protection of rights through collective management organizations; In the protection link, support is mainly provided through collective rights protection and dispute resolution; In the management link, guide enterprises to carry out copyright management, formulate enterprise copyright strategy, and provide copyright knowledge training and other services. The above-mentioned "four links" services should be connected and coordinated with each other. Generally speaking, building a copyright transfer platform with the copyright exchange center as the main body and providing corresponding copyright transfer services will further meet the needs of digital publishing for copyright authorization. The services provided by copyright transfer platform in the process of digital publishing can be divided into two levels: basic copyright services and other copyright services. However, basic copyright services are mainly guaranteed basic services, and their marketization is weak, so they should not be introduced to the market, and they basically rely on government financial support, such as the construction of copyright trading platform and mediation of copyright disputes. Other copyright services, such as copyright litigation agency, can introduce market-oriented mechanism to reduce government expenditure in this field. This division of different levels will help us to make more effective use of state funds in the process of optimizing the trading environment and guide the society's investment enthusiasm for digital copyright transfer. At the same time, the service function of copyright transfer platform should be strengthened. Establishing a copyright transfer platform based on the whole process of creation, dissemination and use of works and providing multi-functional and multi-range technical support for copyright comprehensive services will greatly promote the realization of copyright transfer and help improve the copyright transfer market.
In recent years, China's copyright exchange center has developed rapidly, and the copyright transfer platform has developed strongly. But on the basis of increasing quantity, we should pay more attention to the improvement of quality, especially the cultivation of advantages in our key regions and industries. At present, there are three copyright trading centers in Beijing alone: Beijing National Copyright Trading Center, China Renmin University Copyright Trading Center and Beijing International Copyright Trading Center.
Therefore, it is urgent to integrate copyright trading centers with similar homogeneity and business, and strive to build a number of regional, industrial and powerful copyright trading centers nationwide. "An authoritative and online copyright trading platform will greatly facilitate digital copyright trading. At that time, as copyright buyers and sellers, they only need to choose copyright on this platform and then pay, and this platform can undertake copyright review and clarify information, which will standardize copyright transactions. "
It is a beneficial exploration to build a digital copyright trading platform led by more influential institutions in the industry. For example, in order to help newspapers, broadcasters and other media get more profits from news services of mobile phones and other wireless devices, the Associated Press decided to set up a digital rights trading center. The Copyright Exchange Center will negotiate the licensing of reports, photos and videos of member media. Except for the management fee of about 20%, all other copyright income belongs to the member media.