Original title: can the NFT platform save copyright loopholes
NFT industry is no less involved than any industry. There have been mutual denigration among competitors, and even a series of litigation cases. "Pit digging" NFT rights protection emerges one after another.On the one hand, all platforms have to chase the halo and exclusivity of big IP, on the other hand, they have to face the madness and loss of consumers。
Today, I will make an abstract summary of the phenomena that sister Sa's team acts as an agent, assists in handling and observes, so as to remind all old friends, minimize disputes and promote the healthy development of the industry.
Songs with high popularity and animation loved by everyone naturally have high value. The initial NFT platform is still playing with information asymmetry. Many traditional artists and galleries are in the water testing stage for NFT, do not know much about technology, and are jealous of their overseas counterparts. At that time, it was relatively easy to get authorization, which can be done almost with a big drink. But unfortunately, at that time, NFT platforms were mostly reckless platforms of hairy boys, and the authorization contracts were so rough that they couldn't bear to look directly at them. Necessary for NFT casting and salesright of reproductionandCredit network rightThere was no direct agreement, which buried hidden dangers and led to the outbreak of subsequent disputes.
We have seen all kinds of wonderful authorizations, so we don't show them one by one (mainly because they are too distinctive and afraid of taking seats according to the number). Remind you to pay attention to the following points when signing the IP authorization agreement:
（1）Ask whether the obligee is the author, if the obligee is an author, he may be required to provide the manuscript, original, legal publication, copyright registration certificate and certificate issued by the certification authority;
(2) If the other person is not the author,Ask them how to obtain authorization, ask them to show the contract for obtaining rights, and check the source of upstream rights, judge whether the information network right and reproduction right have been circulating well. Pay attention to the integrity of the authorization chain to prevent the embarrassing situation that the authorizer has no rights. Otherwise, once the NFT is cast and sold, the rights of the holder cannot be guaranteed, and once it ferments in the community, there will be stakeholder risk.
（3）Leave traces of negotiation, such as wechat chat records;
(4) TryStrive for exclusiveTo ensure scarcity;
(5) Second time preferred offering, and those who sell later mustInterval for a period of timeAnd not identical;
（6）Pay attention to the authorization timeNowadays, some judgments mislead NFT into property rights and do not give "exhaustion of rights" (illegal legal powder, please ask our legal affairs directly). There will be huge contradictions between the final buyer and the platform, which must be explained in the registration agreement in advance.
Finally, platform a won the copyright authorization related to the distribution of NFT. As a result, the IP party was treacherous, slightly modified the authorization contract of both parties, and authorized platform B, C and D to distribute NFT. As a result, the price of NFT under the IP item fell, and the holders felt frustrated and even had customer complaints. under these circumstances,Can platform a, which has obtained copyright authorization, Sue its upstream IP party? Does a have the right to sue B, C and D?
The situation needs to be discussed.
（1） In case of repeated authorization of non exclusive use right, the difficulties of the previous licensee
When the IP party is responsible for platform aNon exclusive licenseWhen, the IP party has the right to license multiple uses of the same copyright property right, that is, it has the right to license the use of platforms B, C and D. therefore, IP has not breached a, and a has no right to claim the IP Party's breach of contract or sue B, C and D.
It is worth noting that platform a is not only trapped by the lack of scarcity that may be caused by non exclusive use license, but also because it is impossible to predict, control and decide more B, C, D or even e, F and G platforms to directly distribute a large number of NFTs with the same work without any adaptation and modificationThe NFT of this work may constitute "not weakening the non homogeneity of NFT through mass creation" mentioned in the initiative of the three associationsIn turn, it caused the regulatory authorities to carry out integrated supervision on the NFT based on the casting and distribution of the work, compulsory off the shelf and other measures, and triggered stakeholder risks.
（2） When the exclusive use right is repeatedly authorized, how does the prior licensee protect the right?
1. Claim breach of contract or infringement against the copyright owner
When the IP party exclusively licenses platform a, it is obvious that,A has the right to sue the IP party authorized to it。 For example, a printmaking work created by an artist himself is directly authorized to be cast and distributed by the NFT platform. The contract stipulates that it is an exclusive use license. The licensed content includes reproduction right, distribution right and information network communication right, but it also authorizes others to sell the same work by NFT. The contents of the authorized rights are the same as above. Then, platform a can directly sue the artist. The cause of action isAction for breach of contract, there are still some disputes about whether to file an infringement lawsuit, but sister Sa's team believes that the infringement lawsuit also has the basis of claim right.
The reason for the lawsuit of breach of contract is obvious. According to the agreement, in the case of exclusive license, the copyright owner shall not license the exclusive or non exclusive use of the same expression to a third party according to the agreement.
Sister Sa's team believes that the basis of the claim right of infringement lawsuit is,The IP party infringed the exclusive right to use platform a。 Take the information network communication right as an example, because the IP party, knowing that it has granted the exclusive right to use the information network communication right of platform a, licenses the same right, and authorizes platforms B, C and D, which undoubtedly infringes the exclusive right to use platform a of the previous Licensee.
In this case, for the identification of the subject who enjoys the information network communication right of the work, let's look at a case. In the retrial case of the dispute between company a and company B over infringement of the right to network dissemination of works information (case No.: (2021) jingminzai No. 77), the Beijing High Court held that the licensee who signed the contract first enjoyed the exclusive right to network dissemination of works information. The reasons for the judgment are: "According to the evidence on file, a company enjoyed the exclusive information network communication right of the works involved from April 23, 2014 to August 1, 2020, and the time when a company obtained the exclusive information network communication right was significantly earlier than that when B company obtained the information network communication right of the works involved. Therefore, according to the above provisions, without the permission of a company, a company B operated the" XX network "during this period." The mobile client spreads the works involved,Infringed upon the exclusive right of information network communication enjoyed by a company。”
2. May require the later Licensee to stop the infringement, and may claim damages when the later licensee has the intention of infringement
Then, another question comes at any time. Can platform a, which obtained the exclusive license first, Sue platform B, C and D, which obtained the use license later, to stop the infringement and bear the corresponding liability for compensation?
As mentioned above, platform a enjoys the exclusive right to use the information network communication right of the works. Therefore, when the first Licensee a platform has obtained the exclusive use right,The later licensed platforms B, C and D exercised the exclusive right to use the information network communication right without the permission of platform a, which violated the exclusive right to use the information network communication right of platform a。
So, what rights should platform a claim from platform B, C and D?First, it has the right to require B, C and D to stop infringement。 It is generally believed that in copyright infringement cases, the cessation of infringement is not based on the fault of the infringer. This view is also held in the aforementioned (2021) Jingmin retrial civil judgment No. 77.Second, when it can be proved that platform B, C and d have subjective faults, they are required to bear the liability for damages。 (the proof of subjective fault is a technical work, which is not carried out in this law popularization article,Readers in need can contact sister Sa's team for support。）
Affected by the overseas NFT market, the mainstream of domestic NFT is still pictures or videos. Pictures are mainly cool avatars, and videos bloom. In order to reduce the legal risk caused by the upload of infringing works, the compliant NFT company has a special review post to painstakingly detect whether there is the upload of infringing works in the picture library every day. As everyone knows,Music works, produced as NFT, have unique advantages。
In China, China's music copyright agreement is a collective management organization of music copyright. According to Article 8 of the copyright law, copyright owners and copyright related rights holders may authorize copyright collective management organizations to exercise copyright or copyright related rights. The first paragraph of Article 23 of the regulations on collective administration of copyright stipulates that when an organization for collective administration of copyright permits others to use the works, audio and video recordings, etc. under its administration, it shall conclude a license contract with the users in writing. in other words,According to the authorization of the copyright owner, the China music copyright association signs a contract with the user for the use of the music works under its management, issues licenses to the user and collects royalties。
The rights of music works managed by the China Music Copyright Association, in accordance with the provisions of Article 9 of the association's articles of association, include: (1) using music works for public performance; (2) Use music works for public broadcasting; (3) Using music worksProduction, reproduction and distribution of audio and video products； (4) Using music works to produce radio and television programs; (5) Fixing a musical work on a carrier by means of film making or similar film making; （6）Provide music works to the public by means of information network communication； (7) Other uses of music works suitable for collective management. In other words, to protect the diversity of music,By paying royalties to the China Music Association, you can obtain the "license of information network communication right", which is convenient and efficient。
However, it is worth noting that NFT platform operators note that according to the provisions of paragraphs 2 and 4 of Article 23 of the regulations on collective administration of copyright,An organization for collective administration of copyright shall not conclude an exclusive license contract with users, the term of the license contract shall not exceed2 years。 As mentioned above, in the case of only obtaining the non exclusive license of copyright such as information network communication right, the NFT platform may face the corresponding lack of NFT scarcity, regulatory and stakeholder risks.
Write at the end
NFT industry is still developing continuously. In the tide of digital economy, the combination of cultural products and technology is a valuable practice. We look forward to the healthy development of the industry,We do not want the industry to be alienated into the hardest hit areas of illegal fund-raising and MLM, please keep your original intention and operate in compliance.