Viewpoint | Web Writing Patterns and the Nature of Contracts That May Be Involving
Published:
2023-12-21
This paper focuses on the nature of the copyright contract of the network literature platform and related legal issues.
The traditional online literature creation platform mostly exists in the form of online literature community. The author publishes his works in special or comprehensive forums. The online platform only provides software support and extremely low level value-added services. However, from the current creation and dissemination of online literary works, the following model is basically adopted: the author and the online literature platform agree on the creation, ownership, and use of the work in the form of a contract, and publish the work to the online literature platform The copyright and neighboring rights generated by the work are exercised by the platform and the work in accordance with the contract. The main content of the contract is, the revenue generated by the platform as a result of the dissemination of the work is distributed between the platform and the author. The dispute also arises from the conclusion and performance of these contracts. On the surface, these contracts have not deviated from the theoretical and institutional framework of the classic civil law, contract law and copyright law, and there are no problems such as defects in meaning expression in appearance. However, they have led to complex disputes between many authors and platforms, and have led to disputes about the protection of author's rights, platform liability, overlord clauses and so on. On the one hand, the author group claims that its legitimate rights and interests have been improperly deprived, and the platform uses its knowledge advantage and capital hegemony to squeeze the author's interests; on the other hand, in the process of network dissemination of literary works, the formation of network platform advantage is not only necessary, but also inevitable. How to balance the interests of both sides, protect the rights and interests of authors and communicators, and guide the healthy development of this new literary form is a problem that needs attention.
This paper focuses on the nature of the copyright contract of the network literature platform and related legal issues. The types of agreements related to online literary creation-mainly between online platforms and authors-are mostly nameless contracts. Most of these contracts take the form of a listing of the rights and obligations of the parties, and the nature of the legal relationship between the parties cannot be judged from the terms of these rights and obligations. For example, some clauses appear in the form of "copyright license", but their essence almost constitutes the transfer of copyright; some clauses position the work as "user-generated content (UGC)", but the platform's control over the work is much greater than this, and some may have the characteristics of a publishing contract; some clauses define the author's creative requirements, the ownership of rights and obligations, etc, it even makes a de facto labor or labor relationship between the two. In addition, there are some content in these contracts that are contrary to copyright law and may be invalid.
(I) typical contracts related to web writing
A typical contract, also known as a named contract, is a contract that is regulated by law and given a certain name. According to the "Copyright" law, the copyright of a written work arises from the completion of the creation of the work and initially belongs to the author. Therefore, in the process of network writing, the author and the network platform are regulated by relevant laws and agreements. These agreements may involve the following typical contracts.
1. User Use Agreement
At the beginning of the birth of network literature, the rights and obligations between the network platform and the author are restricted by the user's use agreement. This type of protocol is actually developed from the end user agreement (EULA) commonly used in computer software. There is no substantial difference between the author and the reader. They are both users of the network platform. The author and the reader use the system provided by the website to publish works or other "posts" that do not constitute works online as registered users ". Before users register to use the services provided by the website, the website uses a set of format contracts to regulate the behavior of users using the website to publish information. Except for the definitional terms and terms related to network security, the website generally does not require an explicit license or transfer of copyright for the work or the copyright itself. The Site is licensed with very limited partial copyright rights based solely on the needs of the Site to operate. Some of these licenses are based on the provisions of the law or the agreement of the user's use agreement, such as online submission is regarded as the publication of the work, the right to republish the website, etc. However, more often, the use of works by websites is based on behaviors that should be allowed for website operation, such as information network dissemination, copying of works for data backup, etc. As for the creation of works, websites generally do not interfere, but emphasize that works must not violate the regulatory provisions of the law. At the same time, some websites may review the works published on the website in advance or later for the sake of unified theme and quality of the website, so as to publish or delete the works. Based on the user agreement, the author has complete copyright to the work. If the website intends to make further use of the published article, it will have to sign a special agreement with the author, thus moving to the copyright transfer or licensing model.
2, copyright transfer or licensing model.
In order to make further use of the works, such as the collection and publication of the works or the change into film and television works, the website needs to sign a copyright license contract with the author for the works. In these contracts, the network platform obtains part of the right to use the work according to the agreement, such as the right to adapt, the right to compile, the right to film, etc. However, as mentioned earlier, especially in the process of filming film and television works, the exercise of ordinary license or single power may not meet the needs of the integrity of the rights associated with it. Therefore, the network platform often tries to obtain exclusive or exclusive license, and obtains a more complete license of property rights of works, and even requires the author to transfer the property rights of works. In the process of using copyright for pledge financing, the transfer of all property rights of works is the most common practice.
In order to obtain the original copyright, the network platform and the author sometimes sign agreements on the ownership of future works. The names of these agreements are often still "copyright authorization agreement" or "license contract", but in fact, they may form entrusted creation or even labor and labor relations.
3, entrusted creation agreement, network brokerage agreement or the formation of labor and labor relations.
The validity and content of the copyright license or transfer contract are restricted by the copyright law. This restriction mainly focuses on two aspects: first, the generation of copyright begins with the completion of the creation of the work. Therefore, for the unfinished works, since there is no "right" that can be granted, it is of course impossible to have a license or transfer contract with copyright as the subject; second, according to Article 10 of the copyright law, the copyright rights that can be used for licensing or transfer are limited to the property rights of the works. Therefore, if the network platform agrees on the ownership of the complete copyright of the work produced in the future, it is likely to constitute a contract of commissioned creation. According to Article 17 of the Copyright Law, the copyright of the entrusted work is stipulated by the contract, and in the absence of an agreement, it belongs to the trustee, that is, the author. In practice, the network platform and the author often agree that the copyright initially belongs to the network platform operator, so that the network platform can form the original acquisition of the complete power of the copyright.
Different from the traditional commissioned creation, the network literature creation agreement often does not make a special clear agreement on the creation content itself, but only determines the number and frequency of contributions, the ownership of copyright and the distribution of benefits. At the same time, with the development of the industrialization of network literature, the related specialized profession arises at the historic moment, both network literature agent. The main work of the broker is not only to find trading opportunities and facilitate transactions for the author and the network platform, but also to undertake upstream industry-related work such as the determination of creative style, the selection of themes, the communication between the network platform and the author on the creative content, and the follow-up of the writing progress. Some of them are also responsible for the operation of works, author services, works publicity and derivatives development services.
The development of the network literature creation industry has produced more complex agreements and operating methods. When commissioned creative agreements are combined with online literary brokerage agreements and are often under the full control of online platform operators, groups of authors, especially small and medium-sized writers, argue that these contracts essentially form labor or service relations. In these agreements, the network platform often stipulates the number and frequency of the author's contributions by agreement, and agrees that the copyright originally belongs to the network platform. At the same time, it is agreed in the contract that the author should create in accordance with the content and style required by the network platform in the process of creation. These requirements are not explicitly stated in the contract, but are issued to the author through separate instructions during the performance of the contract. In particular, many online platforms have agreed on the use of the author's pen name. In addition to the traditional author writing under a pen name, there are also some special ways of application, such as prohibiting the author from contributing to other subjects under the same pen name, for different works, the author should write under different pen names, or different authors should create under the same pen name, or even multiple authors jointly create the same work under the same pen name. In this case, the author is generally called "writer" in the industry, and this kind of creation also deviates from the writing mode with the author as the core in the traditional literary creation and turns to the production mode of industrialized works. Therefore, the author group believes that it has formed a labor or labor relationship with the network platform, and then advocates the relationship of rights and obligations related to labor security, labor infringement and job works.
(II) network publishing mode and nature of publishing agreement
The network literature creation industry has experienced the development path from the traditional UGC model to PGC and OGC model. At the same time, these modes also exist in the current network literature creation. Therefore, it is necessary to sort out the nature of the network creation protocol in these modes.
In the UGC model, the platform generally operates as an electronic bulletin board (BBS), online forum or online community, in which users publish articles on the website and the platform is the channel for authors to publish articles. The relationship between the author and the platform is the relationship between the user and the network service provider. The protocol at this time is generally a user usage protocol. The author retains relatively complete copyright and is responsible for his own articles. For the author's infringement, the website can invoke the "safe haven principle". In the UGC mode, the further use of the work is extremely accidental. When the network platform wishes to make further use of the work, the agreement signed is generally a copyright license or transfer contract.
In the PGC model, the author is generally a professional writer, the purpose of writing is to publish on the website, through the website traffic or revenue sharing, while seeking opportunities for the creation and use of derivatives of the work. Therefore, the website and the author will generally sign an agreement in advance on the use of the copyright of the work, and at the same time agree on the attribution of rights and the distribution of benefits for the interpretation of the work. These agreements may be copyright transfer, licensing contracts. For the creation and operation of derivatives, the author and the platform may also form an agency relationship (I. e., the platform acts on behalf of the author to exercise copyright rights) or a brokerage relationship.
In OGC mode, the author's writing is generally to complete the tasks delivered by the platform and write according to the requirements of the platform, and the platform pays the remuneration according to the agreement. The agreement relationship formed at this time is relatively complex. Since under the OGC model, if the agreement is generally for works that have not yet been created or have not yet begun to be created, there is generally no copyright license or transfer agreement. Its agreements should be characterized as the aforementioned commissioned creation agreement, online brokerage agreement or the formation of labor and labor relations.
When the traditional copyright object of written works is used as the carrier of the network, and thus the author uses a business model that is completely different from the past, the nature of the legal relationship and the relationship of rights and obligations between the two parties cannot be determined only by the wording and appearance of the agreement between the author and the network platform. It is necessary to study the essence of the relationship between rights and obligations determined by the provisions of the agreement, analyze the agreement provisions and the spirit of relevant legislation in accordance with the copyright Law, the contract Law and other relevant laws and regulations, and combine the trading habits and the principle of good faith to determine the essence of the legal relationship between the two parties, so as to determine the nature and validity of the agreement and its provisions, and clarify the relationship between the rights and obligations of both parties. And the external liability and other matters.
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