Introduction: The inherent tension between the property ownership of minors’ intellectual property rights and the guardianship system in the digital economy era
As mankind enters an era where the highly information-based digital economy and the knowledge economy converge, the depth and breadth of minors' participation in social and cultural creation and commercial operations have experienced unprecedented expansion. With the help of Internet video sharing platforms, social media, literary creation websites and developed cultural and entertainment industry systems, minors are no longer just one-way content consumers, but are increasingly becoming important creators of intellectual property. Whether they are participating in film and television performances as child stars, outputting audio and video content on online platforms as "kid influencers", or completing literary works or inventions as talented teenagers, minors are accumulating intangible assets with huge commercial potential at an unprecedented speed. However, beneath the surface of this prosperity lies deep-seated doctrinal conflicts within the current civil legal system.
Looking at the basic framework of civil law jurisprudence, the process of children acquiring intellectual property rights is a factual act, which does not require the rights holder to have full civil capacity as a legal requirement; however, once it involves the transfer of intellectual property rights, exclusive licensing and other commercial disposal areas, the behaviour is transformed into a typical civil legal act, and according to legal regulations, it must be carried out by its legal guardian. 1 During this transformation process, there is a mandatory legal separation of the ownership and management rights of the minor's property 1 . Based on the natural identity dependence relationship between parents and children and the mixed state of property within the family, guardians can easily fall into serious conflicts of interest when acting on behalf of minors to dispose of their high intellectual property rights. Faced with the temptation of short-term commercial interests that can easily cost millions or even tens of millions, some guardians may abuse their legal agency rights and sign extremely demanding long-term contracts with third-party brokerage agencies, content distribution platforms or cultural enterprises. Such contracts often deprive minors of their intellectual property benefits for the next ten years or even longer, forming an actual “contract of sale.” This long-term and extremely unequal transfer of rights has not only seriously eroded the legal economic rights and interests of minors as independent property rights holders, but also caused irreversible and devastating damage to their long-term physical and mental development, right to education, and future career planning.
Although Article 35 of my country's Civil Code establishes the "principle that is most beneficial to the ward", it also clearly stipulates that "the guardian shall not dispose of the ward's property except to protect the interests of the ward" 2. However, as a highly abstract principled norm, this provision reveals obvious limitations in application and insufficient provision of rules when dealing with intangible assets such as minors’ intellectual property rights that have strong personal attachment, long-term value uncertainty, and huge commercial leverage potential. The current law neither provides a set of refined doctrinal rules to identify and adjust the conflict between the guardian's personal interests and the long-term development interests of the ward, nor has it established an ex-ante review and ex-post blocking mechanism at the institutional level to address the validity flaws of such complex commercial contracts. 3 In judicial practice, when faced with commercial disputes over minors’ intellectual property rights, courts often vacillate between protecting the security of external transactions and safeguarding minors’ internal legitimate rights and interests, leading to the common occurrence of different verdicts in the same case.
This report is committed to a panoramic analysis of the manifestations and legal essence of conflicts of interest of guardians in the commercialization of minors' intellectual property rights from the perspective of legal doctrine, and an in-depth analysis of the normative meaning of Article 35 of the Civil Code and the dilemma of its application. On this basis, by introducing and reconstructing advanced regulatory experience in comparative law, this report aims to build a set of "review and revocation mechanisms" that take into account the absolute protection of the rights of minors and the relative safety of commercial transactions. This is not only a theoretical supplement to my country's current minor guardianship property protection system, but also provides a systematic, theoretical and highly operable institutional antidote for balancing the conflict of legal interests between the exercise of guardianship rights within the family and children as independent property rights holders in the digital age.
Disagreement between factual behaviour and legal behavior: the dual-track system for confirmation and punishment of minors’ intellectual property rights
To deeply understand the legal dilemmas in the commercialization of intellectual property rights for minors, the first prerequisite is to clarify the essential differences in civil law doctrine between the acquisition and disposal of intellectual property rights. These two correspond to factual behaviour and legal behaviour in civil law respectively, thus forming a dual-track system for the operation of intellectual property rights for minors.
Original Acquisition of Intellectual Property Rights: Qualification as a Factual Act
In the system of changes in civil rights, factual behaviour refers to behaviour in which the actor does not necessarily have the subjective intention to establish, change or eliminate a certain civil legal relationship, but objectively, due to the completion of the behavior, the law directly gives it the corresponding legal effect. The original acquisition of intellectual property rights, especially the act of invention and creation in copyrights and patent rights, is a typical factual act. For example, a five-year-old creates an original painting, or a fifteen-year-old writes a useful piece of computer code. The completion of these intellectual tasks does not require the creator to have any degree of civil capacity. The reason why the law stipulates this is to respect and protect human intellectual achievements and innovative spirit to the greatest extent. Therefore, once a minor completes a creation, he immediately and absolutely obtains the complete copyright of the work, including personal rights such as the right to publish, the right to sign, the right to modify, and the right to protect the integrity of the work, as well as property rights such as reproduction rights, distribution rights, and information network dissemination rights. At the level of rights ownership, minors are undisputed, independent and complete rights subjects.
Commercial Disposal of Intellectual Property Rights: A Capability Barrier to Legal Actions
Completely different from factual behavior, the realization of commercial value of intellectual property rights must rely on a series of complex market transactions, such as transfer of ownership, exclusive licenses, general licenses, pledge financing, and stock pricing. These behaviors are collectively referred to as legal behaviors in legal theory. Their core feature is that expression of intention is the element, and corresponding legal effects occur based on the content of the expression of intention. According to the Civil Code's tiered provisions on capacity for civil conduct, minors under the age of eight are persons without capacity for civil conduct, and shall be represented by their legal representatives when performing civil legal acts; minors over the age of eight are persons with limited capacity for civil conduct, and when they perform civil legal acts that are not commensurate with their age and intelligence, they must also be represented by a legal representative or obtain their consent or ratification.
It is this barrier to the civil capacity system that puts minors in the awkward position of "owning but unable to control their own intellectual property rights". Due to the limitations of age and intellectual development, minors’ control of huge property cannot be completely equivalent to that of adults with rich social experience. The control of property beyond the scope of their age and intelligence is mainly carried out by their guardians1. This inevitably leads to the particularity of a deep separation of ownership and management rights of minors’ property. 1
Inherent risks and personal dependence characteristics of the dual-track system of intellectual property rights
If the separation of ownership and management rights of tangible property (such as real estate, deposits) already contains the risk of misappropriation by guardians, then the dual-track system of intellectual property rights amplifies this risk several times. Intellectual property rights have extremely strong personal attachments. Works created by minors or their image as a performer often carry their unique personality characteristics, private information and reputation evaluation. When a guardian transfers or exclusively licenses these intellectual property rights, what is being sold is not only the current property interests, but also may deeply bind the minor's future freedom of behaviour and personality development. For example, a ten-year exclusive entertainment agency contract not only requires minors to hand over all income rights from past works, but also forces them to perform high-intensity creations or performances in accordance with the requirements of the agency within the next ten years. If they disobey, they will face sky-high liquidated damages. This kind of disciplinary action that realizes future intellectual labour and personal freedom in advance has already gone beyond the traditional management of existing property and has evolved into a serious overdraft of minors' personal dignity and long-term development rights. Therefore, under the dual-track system of intellectual property rights, guardians’ agency behaviour has extremely high spillover effects, and special laws are urgently needed to regulate it.
Legal doctrine analysis of Article 35 of the Civil Code: From the "most beneficial principle" to the effectiveness of disciplinary actions
In order to prevent the alienation of guardianship powers, our country's laws have established a strict regulatory system for guardianship responsibilities. Paragraph 1 of Article 35 of the Civil Code stipulates: "A guardian shall perform guardianship duties in accordance with the principle that is most beneficial to the ward. The guardian shall not dispose of the ward's property except to safeguard the interests of the ward" 2. This clause constitutes the cornerstone of substantive law in my country that regulates guardians' property disposition. However, when faced with complex commercial dispositions of minors’ intellectual property rights, the doctrinal connotation of this clause urgently needs to be deeply expanded and reconstructed.
The broad and narrow distinction between the concept of "discipline" and its reconstruction in the context of intellectual property
How to define the word "discipline" in Article 35 of the Civil Code directly determines the scope of legal regulation. When discussing the disposition of property of minors, the famous civil law scholar Wang Zejian pointed out that the word disposition has multi-layered connotations in the civil law system, which can be divided into broad and narrow categories. 2 In the broadest sense, disposition includes not only legal disposition, but also de facto disposition (such as physical damage and abandonment); legal disposition is further divided into burden behaviour (i.e., creditor's rights behaviour that creates a creditor's right and debt relationship) and disposition behaviour (that is, property rights behaviour that directly causes changes in real rights or quasi-real rights) 2. Disposition in the narrowest sense only refers to acts of property rights that cause direct changes in rights 2 . According to the interpretation of Taiwan's civil law, parents may not dispose of the unique property of their minor children except for the benefit of the children. The "disposal" here includes creditor's rights and property rights. 2
In the commercialization process of minors’ intellectual property rights, agency signing and contract performance are inseparable. The guardian first signs an intellectual property transfer agreement or exclusive agency contract with the counterparty (an act of burden), and then handles the transfer registration or actual delivery authorisation of relevant rights (an act of disposition that quasi-changes in property rights). If the "disposition" in Article 35 of the Civil Code is only understood in the narrowest sense, then the guardian's act of signing a "deed of sale" that seriously harms the interests of the minor will escape the preliminary review of the law, which obviously violates the original intention of the legislation to protect the weak. Therefore, in terms of interpretation of legal doctrine, the "disposal of the ward's property" in Article 35 must be understood in a broad sense, and all creditor's rights and quasi-rem actions involving the commercial transfer, licensing, and pledge of minors' intellectual property rights, as well as the establishment of long-term default burdens, shall be included in the scope of this article.
Upgraded subjective and objective standards and duty of care for “protecting the interests of wards”
The core element to judge whether the guardian's disciplinary action is justified is "to safeguard the interests of the ward." In judicial practice and academic discussions, there are disputes about the determination of this requirement between subjective, objective and eclectic theories.
Some practical views believe that in commercial activities such as investing in the establishment of a company on behalf of minor children, "to protect the interests of the ward" mainly refers to the subjective purpose of the guardian, and does not require that the objective result must be actual profit 2. Some even argue that if the theory of granting agency without cause is adopted, whether the parents are protecting the interests of the ward only falls within the scope of the internal basic relationship. Even if the parents are not protecting the interests, the external behaviour is still valid, and the internal relationship is regulated by tort law 2.
However, it is extremely dangerous to apply such broad subjective purpose standards and internal digestion mechanisms to long-term commercial contracts for intellectual property rights. When parents dispose of the property of minor children, when judging whether it is in the interests of the minor children, it is indeed necessary to fully pay attention to the altruistic motivations of the parents and the identity ethics of parent-child unity, and avoid leading to a complete monetary relationship 4. However, for actions that only involve general property interests, parents only need to exercise the same standard of care as when handling their own affairs; when property disposal involves the personal interests and long-term development of minor children, parents' duty of care must be legally upgraded, and they must meet the advanced standard of care of "good managers" 4. The high value and personal attributes of intellectual property determine that only when the guardian has a true intention to benefit the minor subjectively, and objectively the contract has a fair consideration, a reasonable duration, and no strict personal restraints, can it be deemed that it has met the strict test of "protecting the interests of the ward."
The interest game and tolerance limits between family groupism and individualism
The conflict of interests of guardians in the disposition of minors' property, in the larger sociological context, is essentially an in-depth game between two different positions of individualism and collectivism in the family law field 4 .
From a strict individualistic perspective, parent-child property norms are expressed as “parents are relatives, property is divided” 4 . The intellectual property rights of minors and the economic benefits they generate are absolutely exclusive to the children, and parents have no right to use them to improve their own lives or pay off their own debts. However, in the real social picture, the parent-child relationship has a high degree of connection, identity closeness and emotional dependence, which naturally rejects absolutely cold-blooded individualism and exhibits strong groupism characteristics 4. In practice, what often leads to extremely divergent judgments is the behaviour of parents disposing of the property of minor children based on the overall interests of the family, and the behaviour of high-risk investment and financial management for the subjective purpose of increasing the future interests of minor children. 4
Based on the collective nature of the relationship between parents and children, factors such as the improvement of the overall economic situation, livelihood maintenance or housing needs that reflect the interests of the family are objectively closely related to the vital interests of minor children 4 . Therefore, legal doctrine cannot go to the extreme of completely prohibiting parents from using their children’s intellectual property proceeds. A reasonable regulatory path should be to set strict tolerance limits and stepped conditions: when parents dispose of property for the benefit of the family, if it is property jointly shared with minor children, it must meet the "appropriateness" requirement to maintain basic daily needs; if the property is unique to minor children (such as intellectual property licence fees), it must also meet strict "urgency" requirements (such as to save the family from bankruptcy, pay for major medical expenses, etc.) 4 For parents’ investment management of their children’s intellectual property income with the purpose of increasing future benefits, factors such as risk level and rate of return need to be comprehensively considered. Only when the investment allocation ratio is balanced and the overall return is positive, can it be presumed to be in the interests of minor children 4 .
Conflict of interest and validity determination rules in "deed of sale" commercial contracts
In the current cultural entertainment, e-sports and online live broadcast industries, conflicts of interest in the commercialization of minors' intellectual property rights are concentrated in the so-called "sell-out" long-term contracts. The bad thing about this type of contract is that it is obviously "exploitative" and "future overdraft". When parents are tempted by high short-term signing fees, or sign such contracts on their behalf due to a lack of knowledge of complex business rules, how should the current law characterize and prevent its effectiveness? This is the core question addressed in this report.
Unauthorized agency beyond legal authority and its validity is to be determined
When a guardian signs a contract on behalf of a minor with an extremely long term, extremely high liability for breach of contract, and serious deprivation of future intellectual property income, his behaviour has substantially violated the mandatory provisions of Article 35 of the Civil Code. In the doctrine of agency law, legal agency power is not a boundless absolute power, but a kind of agency power strictly limited by law. The legal basis of its restrictions does not come from the authorised intention of the individual (the minor), but the legal boundaries directly set by the law based on the consideration of protecting the weak - that is, the "best interests principle."
Therefore, when a guardian commits a property disposition behaviour that is obviously and seriously unfavorable to the ward, the behaviour should not be regarded as a valid agency behaviour in terms of legal characterization, but should be evaluated as an agency without authority in a narrow sense that exceeds the scope of legal agency authority, or a disposition without authority 5 .
Our country's judicial practice has established similar adjudication rules in other property fields. For example, in a typical case involving a legal guardian transferring equity in the name of a minor beyond the scope of the agreed authorization, the court clearly determined after trial that the transfer of the disputed equity was not to protect the interests of the ward, but in fact harmed his legitimate rights and interests. Therefore, the Equity Transfer Agreement was not effective for the minor, and the transferee should return the equity and cooperate with the change registration5. Extrapolating this adjudication logic to the field of intellectual property, those long-term brokerage contracts or IP transfer contracts that are called agents but are actually exploitative, because they completely exceed the substantive boundaries of legal agency rights, are in principle civil legal acts whose validity is yet to be determined. Without ratification by the minor who has full capacity for civil conduct, or without ratification by another qualified guardian re-appointed by the court, the contract will not be legally binding on the minor.
The value balance dilemma between internal guardianship relationship and external transaction security
However, directly identifying such a contract as having undetermined validity or having no effect on the person will inevitably encounter challenges from another cornerstone principle of civil law—namely, the protection of external transaction security (third party trust interests).
In traditional disputes over the disposition of property rights, there is widespread controversy in comparative law regarding the validity of parents disposing of property other than for the benefit of their minor children. The invalidity theory focuses on protecting the interests of minors, while the validity theory focuses on protecting the safety of transactions; scholar Wang Zejian advocates distinguishing types to determine their effectiveness, such as uncompensated sanctions being invalid and paid sanctions being effective, but he also admits that no matter what model, it is difficult to call it comprehensive 2 . From the perspective of non-rights to dispose, although the validity of the disposition is pending, if the requirements for acquisition in good faith are met, the third party can still obtain the property rights. An agreement excluding or limiting the right to dispose will only have the effect of a creditor's right. If violated, it will only give rise to liability for damages and will not affect the effectiveness of the disposition. 2
When facing such disputes, our country's judicial practice often tends to give priority to protecting the security of external transactions, and then deal with the issue of damage to interests caused by internal guardianship relationships1. For example, when parents abuse their guardianship rights and sell a property in the name of a minor at a low price, the court may consider that the minor must still abide by the parents' agreement on disposition of the transaction counterparty, and then the minor may claim compensation liability from the guardian based on Article 34 of the Civil Code, or apply to revoke the parents' guardianship qualifications based on Article 36 of the Civil Code. 1
Breaking the myth of good faith acquisition: the particularity of long-term intellectual property contracts
However, applying the above property rights logic that prioritizes the protection of "transaction security" and "good faith acquisition" to long-term commercial contracts for minors' intellectual property rights will lead to disastrous legal consequences.
First, intellectual property objects are highly futuristic and sustainable. Changes in property rights are usually completed with a one-time delivery, while "deed of sale" contracts often require minors to continue to create, perform or live broadcast in the next five or even ten years. Forcing minors to continue to perform this kind of personal sexual obligation "sold" by their parents during their long adolescence is tantamount to a modern form of forced labor.
Secondly, the ex-post relief mechanism is in name only. It often makes no sense in reality to require minors to continue to perform the contract and then claim compensation from their parents. Because parents have often squandered the large advance payment and are simply unable to bear liability for damages. Although depriving parents of guardianship qualifications (Article 36 of the Civil Code) is feasible in extreme circumstances (for example, in a typical case issued by the Supreme People's Court, the qualifications of a guardian who seriously infringes upon the rights and interests of a minor are revoked) 6, this will cause the minor's family to be broken up, and he will suffer huge psychological trauma, and it will still be impossible to relieve the continued exploitation of his intellectual achievements by external contracts.
Therefore, in the context of long-term disposition of minors’ intellectual property rights, the unconditional preference for “bona fide counterparties” in traditional property law must be broken. As highly professional commercial entities, cultural media companies, Internet content platforms or MCN organizations have far higher duties of care and compliance review capabilities than ordinary people when contracting with guardians of minors. If the format contract drawn up contains clauses that clearly exploit the minor's future interests, such as an unusually long term, extremely low consideration, seriously incorrect liability for breach of contract, etc., the commercial entity legally constitutes a guardian who "knowingly or should have known" that the guardian has exceeded the legal agency authority. At this time, the counterparty loses the qualification to be evaluated as "good faith" and cannot invoke the principle of good faith acquisition or reliance on interest protection to resist the minor's defence that the contract is invalid or the validity is pending. The internal legal interests of protecting the long-term development of minors must resolutely outweigh the security interests of external improper transactions in such specific contracts.
Institutional Mirror from the Perspective of Comparative Law: The Special Regulatory Paths of the United States and France
In order to solve the conflicts of interests of guardians in the commercialization of minors' intellectual property rights, developed countries in Europe and the United States have gradually abandoned the practice of relying solely on general principles of civil law in their long-term industrial practice, and turned to the construction of a special regulatory system with administrative pre-examination, mandatory fund isolation and special revocation rights as the core. This has extremely high reference value for the construction of our country's system.
California's "Coogan Act": Refined Regulation of Performing Arts and the Digital Era
As the heart of the global entertainment industry and digital economy, California in the United States has the longest history of regulating personal service contracts for child stars and minors. The core legal system in this area is known as the Coogan Law, and its content is deeply embedded in the California Family Code and California Labour Code. 7 The bill was born out of the tragic experience of the famous child star Jackie Coogan in the 1930s. At that time, California law stipulated that the income of minors belonged entirely to their parents. As a result, Coogan found that his millions of dollars in acting income had been squandered by his parents as an adult. 8 The core mission of the Coogan Act is to fundamentally cut off the ways for parents to legally deprive minors of their income.
The "Coogan Act" has built a strict triple protection network through three major legislative upgrades:
First, Compulsory judicial prior review and deadline red lines. California law stipulates that if a personal service contract for entertainment, sports, etc. signed with a minor does not undergo formal judicial approval by the appropriate county-level superior court, the minor has the statutory right of revocation (disaffirmation) and can overturn the contract at any time. 7 In order to obtain this irrevocable effect, the employer must file an application with the court. It is worth noting that the court examines the direct relationship between the employer and the minor. Although parental consent is accepted by the court, it is not a necessary condition for the court to confirm the validity of the contract. The court even has the power to reject a demanding contract that the parents have agreed to. 7 In addition, the effect of court approval covers all terms of the contract and options for extension and termination10. What is even more lethal is that Article 2855 of the Labour Code draws an insurmountable red line: the term of any personal service contract must not exceed seven years, thereby eliminating the lifelong "sale contract" from its roots 7 .
Second, Compulsory statutory trust and fund segregation system (Coogan Trust). Faced with the loopholes in the original bill, California passed SB 1162 to completely restructure the flow of funds. Regardless of whether the contract is approved by the court, the employer has a statutory mandatory obligation to deposit at least 15% of the minor's gross earnings under the contract directly into a blocked account (Coogan trust) established in California. 7 This 15% calculation base is the total amount before taxes and agency fees are deducted, and if minors are engaged in music or songwriting creation, advances must also be included. 7 This quarantined fund is strictly frozen, and the guardian has no authority to use it and can only invest in low-risk financial instruments until the minor reaches the age of 18 or is emancipated by the court. 7 In order to prevent parents from neglecting to open an account, the subsequent SB 210 bill even stipulates that employers can deposit funds into a default trust account established by the government, and directly links the approval of minors’ work permits to the establishment of the trust account 8 .
Third, extend legislation to the field of online creation. With the advent of the digital age, "child social media influencers" face the same or even more subtle risks of exploitation than child stars did back then. California is actively promoting bills such as SB 764, which aims to fully extend the judicial review and fund deposit mechanisms of the traditional performing arts industry to the content creation and traffic monetization fields of online social media platforms8. Although scholars still point out that the bill has loopholes such as parents still having room to operate as trustees11, the concept of censorship and isolation it establishes has become a global benchmark.
France’s “Law No. 2020-1266”: Penetrating Administrative Regulations on “Children’s Internet Celebrities”
Different from the gradual extension of the traditional entertainment industry in the United States, French legislators have demonstrated more radical and highly targeted legislative courage to commercialize children's intellectual property rights and images on online platforms. On October 19, 2020, France promulgated Law No. 2020-1266 (Law no. 2020-1266), which specifically regulates the commercial exploitation (commercial use) of images of children under 16 years old on online platforms 12.
The regulatory logic of French law profoundly reflects the strong intervention of state public power in family autonomy in the digital age:
First, Formulation of employment relationships and administrative pre-approval. This bill fills a huge legal gap and fully incorporates short video shooting that originally belonged to domestic entertainment into the strict protection framework for child models and entertainers in Article L. 7124-1 and subsequent provisions of the Employment Code 12. For those activities that mainly film children under the age of 16 for profit-making broadcast on video platforms, the law has made a very creative contrivance - directly defining the parents or legal guardians of children as "employers" 14 . Under this premise, parents must first apply for and obtain a personal licence or approval from the French administrative authorities before filming and distributing videos of their children12. Such administrative approval is extremely difficult to obtain and must be subject to rigorous review by an interdepartmental committee composed of judges, the Director of the State Education Service, the Director of the Labour and Solidarity Department, professional doctors and the Director of the Cultural Affairs Department 12 . The committee not only examines the fairness of commercial contracts but must also conduct a medical evaluation to provide evidence of adequate assurance of the physical and mental well-being of the child 12 . Approval is only valid for one year, forcing parents to be re-evaluated every year12.
Second, the absolute isolation of mandatory deposits and earnings from public institutions. In terms of financial protection, French law adopts a more thorough model than California. Part or all of the income earned by minors from such commercial activities (the specific proportion is approved by the committee, far exceeding the 15% bottom line), not only cannot be controlled by parents, nor even deposited in commercial banks, but must be handed over to the "Caisse des dépôts et consignations" (Caisse des dépôts et consignations), a public financial institution under the French treasury system for centralized custody. 12 This fund is absolutely isolated until the minor reaches the age of majority or is legally declared to be released from custody, completely cutting off the possibility of parental misappropriation.
Third, the penetration protection of the “right to be forgotten” and the right to privacy in the digital age. In addition to economic interests, French law pays great attention to the personal interests behind intellectual property rights. The accompanying amendments to the Civil Code and Criminal Code have significantly strengthened the protection of children's privacy13. The recently passed Law 2024-120 (Children's Image Rights Law) further clarifies that children have absolute control over their images and related data16. Even if parents have legally obtained approval and uploaded the video, the minor himself has the inalienable right of access, the right to rectification, and the right to be forgotten/erasure12. This means that minors have the right to request major online platforms to forcibly remove content bearing their image and intellectual property attributes at any time, thus achieving the complete blocking and cancellation of previous disciplinary actions by parents in the digital world. This reform accurately attacks the common practice of parents ignoring the hidden dangers of online sharing (sharenting), and builds the strongest data and IP firewall for children 16.
| Comparative Dimension | California’s “Coogan Act” regulatory model | French legal regulatory model No. 2020-1266 | my country’s current legal system status |
|---|---|---|---|
| Core Regulation Objects | Traditional performing arts service contracts, some online content creation 7 | "Children Internet celebrities" on online video platforms, commercial use of images 12 | The general guardianship duties of the Civil Code apply, and there is a lack of special regulations for IP and digital assets 2 |
| Prior review mechanism | Mandatory judicial review: the High Court evaluates contract terms to prevent revocation 7 | Mandatory administrative approval: review by an interdepartmental committee, accompanied by medical evaluation, once a year 12 | No specific mandatory prior review, relying entirely on the guardian’s discretion |
| Level of Fund Segregation | Employers are forced to deposit at least 15% of total income (including prepayments) into frozen trust accounts 7 | A high proportion of income is mandatory to be deposited in national public financial institutions until adulthood 12 | There is no mandatory isolation and withdrawal regulations for funds, and minors’ income is highly commingled with family property |
| Long-term contract restrictions | Legally mandated personal service contracts must not exceed seven years. 7 | Licenses and work approvals are only valid for one year, blocking long-term binding. 12 | There is no specific legal limit. In practice, exclusive IP licensing contracts lasting more than ten years often occur |
| Personality and Digital Rights | Focus on the protection of property rights and interests, without explicitly creating a special right to digital erasure | Give children the right to be forgotten, ask the platform to remove content at any time, and restrict parents’ rights to share 12 | Relying on general liability for infringement laws and personal information protection laws, it is extremely difficult for minors to defend their rights alone |
Mechanism Reconstruction: Constructing a “review and revocation mechanism” for the commercialization of intellectual property rights of minors in my country
Based on reality, in the face of the predatory development of minors’ IP resources by the digital entertainment industry, it is no longer enough to rely solely on the highly abstract declaration of principle in Article 35 of my country’s Civil Code. Based on comparative law experience, my country should build a systematic "review and revocation mechanism" for the commercialization of intellectual property rights of minors through the introduction of special legislation or the judicial interpretation of the Supreme People's Court under the framework of the Civil Code and the Law on the Protection of Minors. This mechanism should use prior hierarchical review as the line of defense, forced isolation of funds as the base, and special revocation rights and public intervention as the backbone to completely resolve the conflict of interest between custody rights within the family and children's independent property rights.
1. Establish a classified and graded prior review mechanism for major disciplinary actions
The Supreme People's Court has clearly stated in relevant guidance that it should establish a collaboration mechanism with relevant functional departments to review whether relevant entities have fulfilled their legal obligations to protect minors online and send judicial recommendations 18. This concept should be embodied in the pre-examination process for intellectual property commercial contracts.
In view that the comprehensive introduction of cumbersome judicial or administrative approvals may greatly increase compliance costs and hinder normal cultural exchanges, it is recommended to establish "classified and hierarchical review standards." For non-exclusive licenses with smaller subject amounts and shorter periods (such as minors submitting a single short article to a magazine, accidentally participating in a one-time commercial performance), the law can trust it and presume that it meets the "appropriateness" requirement 4 to maintain the children's lives or increase future interests, allowing guardians to directly exercise their legal power of agency without approval.
However, for “major intellectual property disposition actions” that trigger any of the following elements, prior review must be mandatory:
1. Period Requirements: The exclusive licence or service period stipulated in the contract exceeds three years (refer to California’s maximum seven-year limit, taking into account the extremely rapid growth and changes of adolescents, our country should set a shorter review threshold);
2. Power requirements: Involves the complete transfer of existing and future creative intellectual property rights of minors, or involves a global exclusive license;
3. Amount requirements: The signing fee, advance payment or guaranteed income involved in the contract exceeds a certain high amount (such as more than RMB 500,000);
4. Personal restraint requirements: The contract sets strict high-frequency creative obligations or sky-high liquidated damages for minors.
In terms of review procedures, we can learn from the French model and give the "Committee for the Protection of Minors' Digital Rights and Interests" jointly established by the cultural administrative department, the education department and the civil affairs department the power of administrative pre-examination. The core of the review is whether the contract truly complies with the "most beneficial principle", including the fairness of the commercial consideration, the reasonableness of the income distribution, and whether it will cause damage to the minor's right to education, rest, and physical and mental health. For any major disciplinary action that has not been reviewed and approved by legal procedures, the contract will be deemed to be of undetermined validity or even invalid according to law, and the counterparty shall not demand compulsory performance on the grounds of apparent agency or good faith reliance.
2. Establish a fund segregation and trust deposit system with mandatory legal proportions
Cutting off the illegal extraction of economic benefits is the fundamental solution to resolve conflicts of interest among guardians. my country's current legal blind spot is that minors' huge intellectual property gains are directly transferred into their parents' bank accounts and quickly become confused with family property, making subsequent recovery extremely difficult.
Therefore, our country must establish a legal fund segregation system similar to California's "Coogan Act" and French law. It is clearly set at the legal level: Any third-party brokerage company, MCN agency, online video platform or publisher that reaches an intellectual property commercial cooperation with a minor has mandatory "withholding and statutory deposit obligations"**. Specifically, the payer must directly remit the statutory higher proportion (recommended to be at least 30% to 50%) of the minor's total income under the contract (including advance payments, shares, bonuses, and shall not be calculated after deducting so-called "brokerage fees, training fees") into the "Special Trust Account for the Protection of the Rights and Interests of Minors" established in the name of the minor at a regulated financial institution. The funds in this account are subject to absolute freezing management. Unless the guardian can prove the existence of extremely stringent "urgent" legal reasons (such as a minor suffering from a serious illness that requires high medical expenses, and the family's other property has been exhausted) 4, and it is reviewed and approved by the grassroots people's court or the civil affairs department, he has absolutely no right to use the principal and interest in the account. This isolated and protected fund will be automatically unfrozen and given to the minor for free disposal when he or she reaches the age of 18 or is deemed to be a person with full capacity for civil conduct in accordance with the law. For the residual income that is not included in the frozen account, parents, as managers, must also fulfill the duty of care of good managers. If serious losses are caused by high-risk investments or misappropriated for other purposes, they still have to bear the liability for compensation according to law 4.
3. Special revocation and termination rights granted to "deed of sale" contracts
The law should not tolerate using today's meager benefits to buy out a child's unlimited possibilities for the future. For those long-term "sale contract" contracts that circumvent prior review and take advantage of information asymmetry and have been actually performed, a strong post-event and withdrawal mechanism must be created for minors in substantive law.
Although Article 36 of the current Civil Code stipulates a system for revoking guardianship qualifications 2 , there are also typical cases in judicial practice similar to the Shanghai Children's Temporary Care Center's application to revoke the guardianship qualifications of a mother who failed to perform her duties and let the neighborhood committee take over the custody 6 . But this is a deprivation of identity relations, the cost is extremely painful, and it cannot directly overturn an external commercial contract that has already taken effect.
Therefore, "the special right of revocation and the right of arbitrary termination of long-term intellectual property contracts for minors" should be created in the contract or relevant judicial interpretations. When a contract is obviously unfair, has an abnormally long term, or the performance of the contract has seriously interfered with the minor's normal studies and personal independence, minors with certain cognitive abilities (such as those over eight years old) should be allowed to appeal to the People's Court to rescind the contract or exercise the statutory right to terminate the contract with the assistance of legal aid agencies, schools or civil affairs departments.
In the application of this special right of revocation, the protection of excessive reliance on professional commercial institutions must be completely abandoned. Professional entertainment companies and online platforms have extremely high compliance review obligations when transacting with legal agents. If it relies on its strong contracting position to maliciously set up exploitation clauses to seize the future IP of minors, it will legally lose the right to defend itself by claiming "good faith" and the protection of trustworthy interests. When the court decides to terminate the contract, it should not only support the sky-high liquidated damages demanded by the other party, but also order the other party to return the unjust profits illegally obtained.
4. Smooth channels for public intervention and extension of rights in the digital age
Minors are in a naturally weak and subordinate position in family relationships. When parents and commercial institutions form a community of interests to deeply exploit them, it is unrealistic to expect minors to file lawsuits to defend their rights alone. In recent years, the Supreme People's Court has repeatedly issued typical cases that severely punished violations of the rights of minors in accordance with the law, and strengthened comprehensive protection through extended work such as social investigations and legal publicity 6 . At the same time, the Supreme Law clearly requires strengthening coordination and interaction with the public security, procuratorial, judicial administration, women's federation, youth league committee and other departments18.
In cases involving major intellectual property conflicts of interest, the civil public interest litigation mechanism should be fully activated. When it is discovered that minors have been severely exploited in online businesses and their guardians have failed to exercise their right to sue or even become an infringement community, the People's Procuratorate, the Communist Youth League, the Women's Federation, and statutory minor protection organizations should be given clear plaintiff qualifications and directly file lawsuits in court. Litigation requests may include: confirming the invalidity of illegal commercial contracts, freezing illegal gains, ordering the platform to stop infringement, or even in extremely severe cases, applying to revoke the original guardian's guardianship qualifications in accordance with Article 36 of the Civil Code 2 .
In addition, in line with the development of the digital economy, our country should also learn from the advanced concepts of French law and confirm the "digital right to be forgotten" and the right to compulsory erasure of minors' rights to their publicity and early creative content in the intersection of the Personal Information Protection Law and copyright law 13. This gives minors the ultimate power to completely erase digital traces that have been commercialized by their parents after they reach adulthood or awaken, and truly achieve full independence from property to personality.
in conclusion
The emergence of minors’ intellectual property rights is the brilliant bloom of human intellectual enlightenment and creativity in the early stages of life; as an independent property right with unlimited potential, it deserves the strictest protection of modern law. In the process of the transition of intellectual property rights from the de facto act of acquisition to the legal act of commercial disposal, guardians should be the natural defenders and strong shields of minors' rights, but they are often transformed into infringers and deprivers of rights due to the distorted temptation of huge economic interests or short-sighted overall family needs. This profound conflict of interest not only pierced the veil of family warmth, but also ruthlessly revealed the shortcomings of Article 35 of the current Civil Code, the "principle that is most beneficial to the ward," which lacks the penetration of legal doctrine and the practicality of the system when facing the long-term disposal of complex intangible assets.
By deeply analysing the legal boundaries of agency power, breaking the myth of unconditional favoritism in the security of external transactions in traditional property rights law, and learning from the refined regulatory experience in cutting-edge legislation in the United States, France and other countries, my country urgently needs to systematically reconstruct the regulatory framework for the disposal of minors’ intellectual property rights. This reconstruction should not only stop at the level of difficult infringement punishment and identity deprivation after the fact, but must achieve penetrating supervision of the entire life cycle of intellectual property commercialization by establishing an administrative and judicial review mechanism for ex-ante classification and grading, establishing a mandatory isolation and trust deposit system of statutory funds with bottom-line thinking, and granting minors the special right to revoke against long-term exploitative contracts. This is not only the doctrinal enrichment and substantive sublimation of the guardianship and property protection system of my country's Civil Code in the digital age, but also the inevitable responsibility of the state apparatus to use public power to actively implement the international norm of "maximizing the interests of children." On the balance beam of respecting moderate family autonomy and maintaining normal business order, the ultimate mission of the law is to ensure that every minor who shows outstanding creative potential can truly own, dominate and benefit from the fruitful fruits of his or her intellectual labour and move towards a life track of free and all-round development, free from any form of commercial alienation and family exploitation.
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