Due to the "tens of millions" renewal fee being suspended by the Chinese Academy of Sciences, CNKI's business model has once again triggered discussions.
Recently, a screenshot of an email for the "Literature and Information Center" of the Chinese Academy of Sciences was circulated online. The email said that after multiple rounds of negotiations, CNKI still insisted on "nearly 10 million" renewal fees and rather "harsh" renewal conditions. Since April 8, CNKI has suspended the chinese academy of sciences' access to the CNKI database.
On the afternoon of April 19, Tongfang CNKI (Beijing) Technology Co., Ltd. issued a statement saying that after the expiration of the 2021 annual agreement, the Documentation and Information Center of the Chinese Academy of Sciences and CNKI agreed to extend the subscription service to March 31. During the transition period after April 1, CNKI continued its services without service stoppage or interruption. CNKI will also continue to provide normal services to the institutes affiliated to the Chinese Academy of Sciences until the 2022 annual agreement is signed and the service is launched.
In recent years, the "CNKI model" has repeatedly fallen into a storm of public opinion, and the focus of discussion has focused on the two ends of CNKI as a buyer and seller: intellectual property disputes with authors, and high fees for subscribers. What are the legal issues of the controversial "CNKI model"? The reporter interviewed a number of experts on this issue.
What rights may the "CNKI model" infringe on?
In CNKI's current copyright model, it does not have a direct connection with the author of the paper, but follows the indirect authorization chain of "CNKI - journal publisher - paper author", which involves multiple parties.
On the one hand, CNKI signed cooperation agreements with academic journal publishers such as digital publishing cooperation agreements for academic journals and journal licensing agreements, stipulating that the publishing unit authorizes academic journal companies to use the copyrights of their publications. On the other hand, the publishing unit informs the author through the form of "Instructions for Submission" and other forms that once the manuscript is adopted, it is deemed to have granted the copyright of the work to the unit for use, or agrees that the work is included and disseminated in databases such as CNKI.
In December last year, retired professor Zhao Dexin sued CNKI for compensation, causing widespread concern, and copyright issues in the "CNKI model" once again surfaced. In the complex authorization chain, what rights of authors such as CNKI and publishing units may infringe?
Xiong Wencong, an associate professor at the Law School of the Central University for Nationalities, said in an interview with the Beijing News that the "authorization" here refers to the licensed use of copyright, not the transfer of copyright. The licensing of copyright generally includes two typical types of ordinary licenses and exclusive licenses.
"If the exclusive license agreement between the journal publisher and the author of the paper is signed in the form of a free, uniform, simple, formatted license and sublicensing clause, it shall be deemed invalid, and the publishing unit itself does not enjoy the legal exclusive licensee status, and it has no right to sublicense to a third party." In the case of neither of them enjoying the rights, it is likely to infringe the author's copyright, including but not limited to the right of compilation, the right of digital reproduction, the right of information network dissemination, etc. Xiong Wencong said.
In recent years, a number of cases have shown that most of the reasons for the authors of the papers to sue CNKI are disputes over the infringement of the right of dissemination of the information network of works. The right of information network dissemination is an important part of property rights in copyright. Article 10 of the Copyright Law of the People's Republic of China stipulates that the right of information network dissemination is provided to the public by wire or wireless means, so that the public can obtain the right to obtain the work at a time and place of its choice.
Does the indirect "authorization" of a journal have legal effect?
In cases where the copyright owner sues CNKI for infringement, CNKI often submits documents such as the "Agreement on Digital Publishing Cooperation for Academic Journals" signed with the relevant journal publishing unit to the court, proving that it has obtained the permission of the author of the paper before using the work in question.
In December last year, CNKI also mentioned in the "Explanation on Issues Related to Professor Zhao Dexin's Lawsuit against CNKI for Compensation" that it had "obtained the right to disseminate the information network of Professor Zhao Dexin's written works in accordance with the statutory reprint license or through the editorial and publishing unit of academic journals". So, in CNKI's current copyright model, does this indirect "authorization" of the journal publishing unit have legal effect?
Judging from the series of cases of Zhao Dexin v. CNKI, the answer is no.
According to the public judgment, the court held that the copyright agreement in the online collection and editing system of the relevant journal was not signed and confirmed by Zhao Dexin, and Zhao Dexin did not recognize the evidence, which could not prove that Zhao Dexin transferred the right to disseminate the information network of the works involved in the case to the relevant journal publishing unit, and his act of signing the "Academic Journal Digital Publishing Cooperation Agreement" with CNKI was an act of disposition without the right to dispose of it.
At present, the notices such as the "Notice to Submit" of major journals are typical standard terms, with simple content and uniform form. Xiong Wencong introduced that because the exclusive license has a strong exclusivity and has a very large impact on the will and interests of the creator, the publishing unit should sign an exclusive license and a subsequent sub-license agreement with the author of the paper, clearly inform the author of the rights enjoyed and the possible restrictions and impacts on the exercise of rights in the future, and agree on reasonable remuneration.
Gao Peijie, a lawyer at Beijing Jingshi Law Firm, said that if the agreement between the publishing unit and the copyright owner is a standard contract, and the clause violates the principle of fairness, thereby excluding the copyright owner's rights, the copyright owner can confirm that the agreement is invalid, at this time, the publishing unit does not have the basis of "authorization", and this indirect authorization does not have legal effect.
Do journal publishers need to bear legal responsibility?
In the current large number of rights protection cases, most of the authors of the papers sue CNKI as a "giant", rather than transferring "authorization" to CNKI. However, in the "Explanation on the Issues Related to Professor Zhao Dexin's Lawsuit against CNKI for Compensation", CNKI repeatedly mentioned the role of the journal publisher.
CNKI said that "together with the editorial and publishing units of academic journals to face up to the problems and solve the problems", "will actively communicate with the relevant journal editing and publishing units to communicate with Professor Zhao Dexin, and properly handle the problem of Professor Zhao Dexin's works continuing to be disseminated on the CNKI platform". Does this mean that in similar infringement disputes, the journal publishers that act as "intermediaries" also need to bear certain legal liabilities?
Gao Peijie said that when the copyright owner agrees to use the publishing unit as the trustee and authorize CNKI to exercise its relevant rights, or the copyright owner authorizes the publishing unit to exercise the right of permission and transfer of its relevant rights, the publishing unit will not infringe the legal rights of the copyright owner. However, if the copyright owner does not carry out the relevant authorization or the standard contract clause signed violates the principle of fairness, thereby excluding the copyright owner's rights, in this case, the publishing unit does not have the relevant rights basis and still needs to bear the liability for infringement compensation.
Most of the cooperation agreements between CNKI and the journals included in the journal state the terms that the journal publishing unit is responsible for obtaining the author's authorization to CNKI, but due to various reasons, a large number of journals may not strictly fulfill the agreement.
Zhu Jian, former editor-in-chief of the Journal of Nanjing University, pointed out in a paper entitled "Ten Theories on the Relationship between CNKI and the Affiliated Journals and Their Authors- Starting from Professor Zhao Dexin v. CNKI Infringement Case", "Although the journals that published more than 160 papers by Professor Zhao Dexin have signed agreements with CNKI, CNKI has not been able to prove their innocence according to the copyright use and sublicense agreements signed with the authors according to the agreement. It is likely that the licensing agreements that these journals should have signed with the authors long ago never existed. ”
Xiong Wencong said that because the journal publishing unit cannot obtain the exclusive license and sub-license right from the author of the paper through unified and simplified formatting terms, and because it is the paper or other work provided by the publishing unit to the electronic database company suspected of infringement, the two constitute joint infringement and should bear joint and several liability for damage to the author of the paper.
Is CNKI suspected of monopoly?
According to the official information of CNKI, CNKI currently includes more than 95% of the academic resources of the officially published Chinese, and has accumulated more than 200 million domestic and foreign journal literature. The Literature and Information Center of the Chinese Academy of Sciences mentioned in a recent online screenshot that "for many years, cnki database has maintained a high increase in renewal prices by virtue of its influential market position in the Chinese journal database market." ”
In fact, in recent years, many universities, including Peking University, Wuhan University of Technology, and Nanjing Normal University, have successively announced the temporary suspension of CNKI, and the reasons behind it are also concentrated on the issue of rising renewal fees.
Wu Chen, director of Beijing Chenzhang Law Firm and vice president of the Beijing Civil Commercial Law Research Association, said in an interview with a reporter from the Beijing News that the price issue of CNKI has always been the focus of discussion, and for the same product, there is a joint negotiation with the ability, and those who do not have the ability can only accept the price unilaterally determined by CNKI. In fact, from the perspective of this behavior itself, it has been suspected of violating the relevant provisions of the Anti-Monopoly Law, which is a differential treatment of different users.
Because it is difficult for universities and scientific research units to have bargaining power in front of CNKI, the discussion of "CNKI monopoly" has been continuously raised. At the two sessions of the National People's Congress in 2022, many deputies and members also spoke out on this issue.
However, the determination of "monopolistic" acts in the sense of the Anti-Monopoly Law is complex. Sun Jin, a professor at Wuhan University Law School, previously said in an interview with Changjiang Daily that only anti-monopoly law enforcement agencies or judicial organs can determine whether CNKI constitutes monopoly behavior. Law enforcement or judicial authorities follow three steps in making a decision: the first step is to define the relevant market; the second step is to determine whether it has a dominant market position; and the third step is to determine whether it has abused its dominant market position.
"In terms of defining the relevant market, taking Didi as an example, if it is delineated in the e-hailing market, it may have a dominant market position, while in the taxi market it may not have a dominant market position." Zhao Hu, a partner at Beijing Zhongwen Law Firm, pointed out in an interview with the Beijing News reporter that judging whether CNKI has really abused its dominant market position is a difficult process and will involve more economic analysis.
On the question of whether CNKI is suspected of monopoly, on March 9, the Anti-Monopoly Department of the State Administration for Market Regulation said in response to relevant messages that the State Administration for Market Regulation is verifying and studying.
How to get out of the "CNKI mode" dilemma?
In recent years, CNKI has been constantly caught up in copyright disputes and pricing disputes, how to get out of the dilemma of the "CNKI model"?
Gao Peijie told reporters that the "CNKI model" has formed a closed loop of publishing and dissemination in commercial operations, which restricts the transformation of domestic scientific and technological achievements to a certain extent and is not conducive to the market-oriented development of intellectual property rights.
He believes that market regulators should regulate CNKI's commercial transaction behavior, and relevant departments should further liberalize the online publishing service license of domestic electronic academic platforms. At the same time, the market regulatory authority shall regulate the publication and distribution behavior of academic journal companies, and shall not force the copyright owner to carry out "bundled" authorization, and the academic journal company shall further explain to the copyright owner the content of the authorization and the results it will produce.
"While giving full play to the market supervision mechanism, we should further improve the legal awareness and related rights of authors, and promote the sustainable development of intellectual property platforms through the market-oriented supply and demand relationship between readers and authors." Gao Peijie said.
Xiong Wencong believes that the use of anti-monopoly law to regulate this issue is costly, and the actual effect is not necessarily very good. He advocated the use of the relevant principles and rules of civil law and copyright law to solve such problems. "The key is still at the source, that is, whether the paper journal society has legally and effectively obtained the exclusive, exclusive use and sub-licensing rights of its work from the author of the paper."
Wu Chen said that whether from the perspective of competition law and anti-monopoly law, or from the perspective of whether CNKI has a dominant market position in the future, the key to breaking the situation is to return academic data to the scope of public market resources to break the private monopoly position of CNKI and other platforms based on intellectual property rights for these resources that should be used.
"In fact, it is necessary to establish a view that the data resources formed by the digitization of academic journals should enter a public market, rather than monopolizing it in the form of intellectual property rights and in a dedicated form." Wu Chen said.
Beijing News reporter Hu Xianhe exhibited holiness
Edited by Liu Mengjie Proofread by Xue Jingning