Definition
Copyright is a right about works that law has given to civil subject.
For the purpose of this Law, works shall refer to original intellectual achievements in the fields of literature, art and science which can be expressed in a certain form, including:
(1) written works;
(2) oral works;
(3) musical, dramatic, opera, dance, acrobatic artistic works;
(4) fine arts, architectural works;
(5) photographic works;
(6) audio-visual works;
(7) graphic works and model works, such as engineering design plan, product design plan, map, schematic diagram, etc.;
(8) computer software; and
(9) any other intellectual achievements which comply with the characteristics of the works.
Copyright shall include the following personal rights and property rights: (1) publication right;(2) right of authorship;(3) right of revision;(4) right to preserve the integrity of work;(5) reproduction right;(6) distribution right;(7) rental right;(8) exhibition right;(9) performance right;(10) screening right;(11) broadcasting right;(12) information network transmission right;(13) filming right;(14) adaptation right;(15) translation right;(16) compilation right; and(17) any other rights enjoyed by a copyright holder.The first four are personal rights, and the fifth through seventeenth are property rights.
Copyright licensing means that the copyright owner authorizes others to use all or part of the rights in items 5 to 17 above. It is not mandatory to record the copyright license contract. If you need to record the contract, you can apply to the copyright administration department or the official website of the China Copyright Protection Center(www.ccopyright.com.cn).
Main contract terms
If the subject of the copyright license contract is a natural person, the author in the field of cultural creation usually does not use his/her real name when publishing his/her works. Therefore, when reviewing the subject of the contract, it is necessary to check whether the author's real name corresponds to his/her pen name, stage name and alias, and toconfirm the relationship between the real name and the pen name. If the work is published on the network platform, it is necessary to pay attention to the difference between the author's website account ID and nickname. Generally, the account ID is unique and cannot be modified, and the nickname can be changed at will (the relevant rules of the website platform need to be reviewed).
If the subject of copyright licensing contracts are institutions such as company, you will need to audit the correspondence of the company name and the Company operating platform and whether the website has been put on record. For example, the body of taobao.com is Zhejiang Taobao Network Co., LTD, rather than Alibaba or others. The archival status of the website can be queried in the ICP/IP address/domain name information archival management system of MIIT(Beian.miit.gov.cn).
The licensee should also focus on whether the licensor's ownership documents are complete, whether it has the right to license, etc. If the licensor is the original right holder, emphasis should be placed on the reviews of the manuscripts, original copies, the website platform where the work was first published, legal publications, and the copyright registration certificate provided by the licensor. If the licensor is a sub-licenser， whose rights of the licensor are given by a third party, the licensor shall review whether the license chain is complete, such as the contract to obtain the rights, the declaration of the right holder in accordance with industry practice, and the license chain is finally connect to the original right holder.
Taking the film and television drama with complex ownership (belonging to the type of "audio & visual works" in the copyright law) as an example, the common ownership certificates of film and television drama in practice include: 1. The ownership information clearly marked at the beginning or the end of the film and TV drama, such as "the exclusive information network transmission right of the drama belongs to a company"; 2. Signature at the beginning and end of the film, such as production unit, joint production, etc.; 3. Production license, shooting license, distribution license, public screening license and other licenses can be used as a reference for copyright ownership; 4. Contracts, statements, etc. between the related parties in the above 1, 2 and 3.
Licensing Terms
According to the copyright Law, there are two ways of using copyright license: exclusive right and non-exclusive right. But in practice, there are three kinds of license: exclusive license, sole license and non-exclusive license.
Exclusive right is equivalent to exclusive license. During the term of the license, the licensee has the right to exclude anyone, including the licensor, from using the work in the same way. A non-exclusive right is equivalent to a non-exclusive license, and during the term of the license, the licensee cannot exclude others from obtaining the same license. Sole license falls between the two ways. Within the term of license, no one are allowed use the work in the same way, expect the licensee and licensor.
First of all, we should notice the specific expression of the way of licensing in the contract. Due to transaction habits and other reasons, some non-legal concepts are often used in contract terms. In litigation, the court will determine whether it’s the exclusive right according to the contract content, contract purpose, transaction habits and other relevant evidence. Therefore, in order to avoid the adverse effects caused by disputes, I suggest that an explanation of the licensing method be added to the terms of the licensing way. For example: "Exclusive use. Party A authorizes Party B to exclusively use the work, and Party A shall not license the work to a third party or use the work by himself."
Secondly，we should focus on the items whether we can protect our right in our own name In the following conditions，the person can file on his own name:
1.person who has exclusive license;
2.person who has sole license when file with the licensor or the licensor don’t file;
3.person who has non-exclusive license when explicitly authorized by the licensor.
At last, we should keep a watchful eye on the items of sublicense. In the most of the time, all of the licensees of the three way of licenses can not sublicense its right to a third person except they are authorized.
Terms of types of licensing right
As the mentioned above, there are 13 types of property right that the copyright holder can give a license to. Usually a copyright license contract won’t cover all the types of right. As a result, it’s very important to explicitly understand whether the types of rights granted are consistent with the purpose of the contract, that is to say, whether the licensor has licensed the wrong kinds of rights, or whether the kinds of rights acquired by the licensee fulfill the commercial expectations of the licensee.
For example, Guangzhou Maosen Advertising Culture Communication Co., LTD. (hereinafter referred to as Maosen Company) v. Shenzhen New Classic Advertising Studio Co., LTD. (hereinafter referred to as New Classic Company) copyright license contract dispute case.
In 2013, Maosen Company, as the licensee, signed the Copy License Contract with New Classic Company. It is agreed in the contract that New Classic Company, as party A, shall provide the film "Walk to School" to Maosen Company (Party B) for the licensed use in the digital and film copy projectors in Guangzhou administrative area.
In 2014, the new classic company sign a contract with CCTV movie channel. The Movie Channel obtains the right to broadcast the films involved in the case worldwide and the right to broadcast or disseminate the works directly in public by means of wired or wireless (including but not limited to, wired television, wireless television, satellite TV and other free or paid broadcast).
The court held that the Maosen company obtained the right to show the film, while CCTV film channel obtained the right to broadcast the film and the right to spread the information network. There was no direct conflict between the three rights, so The New Classic Company did not violate the contract.
At the same time, the court held that the commercial expectation of Maosen Company could not be simply equated with the purpose of the contract, and that Maosen Company could fully exercise the rights stipulated in the Copy License Contract and realize its contractual interests during the contract term. The court finally rejected all of Maosen's claims.
Licensing scope clause
Copyright licensing may be regional. An agreement can be made that the licensee can only use the license in specific area such as Zhejiang Province or Shanghai, etc. However, as the Internet rapidly develops, today the concept of geographical region is becoming increasingly vague (due to the Internet). the licensee is mostly Internet platform operators or business entities operating on the Internet platform, so the license scope clause needs to focus on the explicitness of description of the licensed Internet platform.The explicitness mentioned above refers to differentiation of the scope of website domain, the mobile phone operating system such as IOS and Android, the types of the stores such as E-commerce flagship store and exclusive shop.
Such as Hangzhou Fengxian cultural information consulting co., LTD. (hereinafter referred to as Fengxian Company) v. Microsoft online network communications technology (Shanghai) co., LTD. (hereinafter referred to as Microsoft), Beijing Sohu Internet information service co., LTD. (hereinafter referred to as Sohu company) information network transmission right infringement dispute case.Sohu is authorized to provide video-on-demand or download services on the “sohu.com” website, but Sohu is prohibited from co-operating with other entities in the form of second-level domain names. The acts complained of occurred under the domain name "msn.tv.sohu.com", which was a cooperation between Sohu and Microsoft and did not fall under the acts licensed in the authorization letter. The court ultimately held that the use of the work of Sohu beyond the scope of the contractual license constituted an infringement of copyright of Fengxian.
License Term Clause
The copyright license shall be within the term of copyright protection, which is stipulated in Article 23 of the Copyright Law and will not be repeated in this article.
I would like to emphasize here that a copyright license contract is different from a copyright assignment contract in that the licensor in a license contract can withdraw the license after the expiration of the license term, but a copyright assignment contract is signed in which the copyright ownership is transferred and the copyright owner is changed. In particular, the review of the license term clause should identify the expressions named as license but actually as transfer, so as to avoid causing the licensor to suffer irreparable losses.
For example, in the case of Zhou Jun v. Xi'an Meng Zhou Film and Television Company copyright infringement dispute [(2015) Shaanxi Civil Court, Third Trial Division, Final Judgment No. 00006, (2015) Civil Retrial Cases No. 2832], the court held that "the novel copyright contract agreed to transfer the right to adapt the novel "Special War Herald" for TV series, the transfer price of 300,000 yuan and the liability for breach of contract ", which met the elements of a copyright assignment contract, and the nature of the novel copyright contract was a copyright assignment contract. At the same time, on the issue of whether to agree on the duration of the assignment, the court held that in the absence of an express "contractual term", the term in other terms of the contract without special agreement cannot be directly agreed as the contractual term.
Modify the terms as appropriate
After the licensee acquires the work, it needs to make appropriate modifications to the work to bring it closer to the purpose of use, but the modifications are not indiscriminate. In this case, the appropriate modification clause is mainly concerned with the extent of modification, the procedure of modification and the attribution of rights to the modified work. The licensor (Party A) can generally agree that the modification requires written confirmation of consent or filing by Party A (Licensor).
Defective Warranty Clause
The contract only binds the contractual parties, if the licensee causes infringement to the third party by using the licensed work, it should still be liable for infringement to the third party, and such infringement is not limited to infringement of the third party's copyright, but there may be infringement of other intellectual property rights or other rights and interests, so the defect warranty clause needs to be stipulated comprehensively in the copyright license contract.
For example, the licensee (Party B) may agree in the contract: "Party A guarantees that the works provided for Party B will not violate the constitution and laws, will not damage public interests, will not involve pornography, violence, reactionary, political and other contents, and will not infringe the legitimate rights and interests of any third party (including but not limited to copyright, trademark rights, patent rights, portrait rights, reputation rights, etc.). If Party A violates this guarantee and Party B suffers losses (the scope of losses includes but is not limited to compensation, settlement, administrative fines, attorney's fees, litigation fees and necessary travel expenses to handle such disputes), all the above losses shall be borne by Party A."
Consensual Jurisdiction Clause
Copyright license contract disputes belong to copyright civil dispute cases. In terms of level jurisdiction, copyright civil dispute cases are different from other civil cases. According to the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law to the Trial of Copyright Civil Dispute Cases, copyright civil dispute cases shall be under the jurisdiction of people's courts of intermediate level or above. Each higher people's court may, according to the actual situation of its own jurisdiction, report to the Supreme People's Court for approval and have a number of The Basic People's Courts to govern the first instance copyright civil dispute cases.When the both parties stipulating the jurisdiction court in the copyright licensing contract, the court with jurisdiction shall be selected according to the jurisdiction provisions of the province where it is located.
Conclusion
Although the content of copyright license contracts may be expressed in various ways due to different types of works, types of rights and client industries, some of the risk points are similar. Based on the copyright system itself and combined with relevant cases, I have briefly analyzed the key points of audit of the main terms of copyright license contracts.
