Discussion on the Practical Issues of Copyright Series 1 - The Constitution and Censorship of the Rights of Artistic Works

Author | Intellectual Property Center, Lawyer Wu Yaping

I. The rights to artistic works

1. Elements of works and works of art

Most of the works of art creators do not constitute works of art in the sense of copyright law due to their lack of originality and aesthetic significance, and therefore cannot be protected by law. For example, simple mechanical creations - drawing horizontal lines at will on paper, the horizontal lines drawn are excluded from the scope of copyright law due to lack of originality or aesthetic significance.

Article 3 of the Copyright Law stipulates that the works referred to in this law refer to intellectual achievements that are original and can be expressed in a certain form in the fields of literature, art and science. Under this article, constituent works must be both original and capable of being expressed in a certain form. "Independent" means independent creation, not plagiarism elsewhere, "creation" means creative, unlike public elements, "expressed in a certain form" means that it belongs to external expression that can be objectively perceived.

Article 4, Paragraph 8 of the Implementing Regulations of the Copyright Law stipulates that a work of fine art refers to a flat or three-dimensional plastic art work of aesthetic significance composed of lines, colors or other places such as paintings, calligraphy, and sculptures. It can be seen from the above provisions that one of the basic conditions that must be met to constitute a work is that the work is original and can be expressed in a certain form; to constitute a work of fine art, it needs to meet the conditions of "aesthetic significance" on the basis of satisfying the aforementioned conditions.

2. The starting point for the protection of the rights to works of art

In practice, most creators or rights holders of works of art fall into a misunderstanding that works need to be registered for copyright, that is, the rights of their works of art arise from the date of copyright registration, and only their works are protected by law after copyright registration. According to Article 6 of the Implementing Regulations of the Copyright Law, copyright arises from the date of completion of the creation of the work.

The creators or rights holders of works of art should get out of this misunderstanding, pay attention to the retention and protection of creative manuscripts, and correctly understand the legal provisions to improve the exercise and protection of their rights.

Creative manuscripts are generally divided into two categories, one is hand-painted manuscripts, which are commonly found in art galleries, personal artists, etc.; the other is electronic manuscripts, which are commonly found in illustrators, freelancers, etc. For the retention of creative manuscripts, manuscripts are mainly lost or damaged; electronic manuscripts are mainly manifested as layer coverage after multiple revisions, loss caused by replacement of electronic products, etc.

As mentioned earlier, the creators or rights holders of works of art have misunderstandings about the starting point for the protection of the rights of works of art, so they do not pay much attention to or have no strong awareness of keeping their creative manuscripts. What's more, they will transfer the creative manuscripts when transferring the property rights of the works, which may lead to the loss of the rights of the original author's works of art.

The complete retention of the manuscript not only guarantees the smooth exercise of the author's copyright rights in the process of commercial circulation, but also becomes an important evidence in the event of infringement.

II. Review of rights in practice

According to Article 12 of the Copyright Law, the natural person, legal person or unincorporated organization that signs the work is the author, and there are corresponding rights in the work, unless there is evidence to the contrary. Authors and other copyright owners may register their works with a registration agency recognized by the national copyright authority.

In practice, the copyright registration center only conducts formal review of the documents submitted to the registrant. As long as the online application registration conditions set by the registration center and the corresponding documents are submitted, the registration can be completed and a paper or electronic registration certificate will be issued after the review is passed. The author believes that according to the current review method of copyright registration, obtaining a copyright registration certificate does not necessarily prove the real copyright owner and copyright ownership of the registered work. Although the certificate belongs to a national document, it can only play a role in publicizing a right rather than confirming it.

In judicial trials, the court's review of copyright ownership is often based on copyright registration certificates. For example, in the case of Fan Xx v. Shenzhen Xin Kyoto Technology Co., Ltd. Copyright Ownership and Infringement Dispute, the court's review and determination of ownership is expressed as "According to the laws of our country, if there is no proof to the contrary, the citizen, legal person or other organization signed on the work is regarded as the author, and the... provided by the parties can be used as evidence for the determination of ownership.

In this case, the plaintiff submitted the work registration certificate of the work involved in the case and the publication page of Sina Weibo. In the absence of evidence to the contrary, this court confirmed that the plaintiff is the copyright owner of the derivative work involved in the case, and his legitimate rights and interests should be protected by law. "In the case of Fan Xx v. Yiwu Liuzifang Household Products Factory Copyright Ownership and Infringement Dispute, the court's review and determination of ownership was expressed as" This court believes that the plaintiff submitted to this court a work registration certificate of the art work involved in the case, stating that the plaintiff is the copyright owner of the art work xx, and the plaintiff's rights are protected by the laws of our country.

It can be seen from the above legal precedents that the court's review and determination of copyright ownership in the process of hearing cases often relies on copyright registration certificates. The author has a different attitude towards the review and determination of this evidence. Copyright registration, as an official document with formal review as a registration requirement, cannot directly check the registration information provided by the applicant for registration with the real ownership information of the work to be registered and actually correspond with the creator of the work and the completion time.

As the plaintiff, it is still far from enough to provide the work registration certificate as evidence to make a basic claim; at the same time, as the defendant, it is also possible to defend the plaintiff's work registration certificate, rather than just recognizing the copyright registration certificate to verify the true situation of the plaintiff's artistic work rights.

Due to the drawbacks brought about by the review mechanism of the copyright registration system itself, and some courts still use the copyright registration certificate as the center for the review and determination of the ownership of the artworks involved, not only are there loopholes in the review of the ownership of artworks, but even false lawsuits may be triggered. In the contemporary era of developed information networks, it is inevitable that many subjects other than the right holder of artworks will initiate copyright infringement lawsuits to the court after stealing other people's works online and registering the copyright. If the original author of the stolen works has not found this situation, then the law will not protect the rights of the right holder of artworks in this regard.

Therefore, whether it is the main body of the right holder of the artwork or the court, in the litigation involved, it should consider returning to the evidence and evidence review and determination of the artwork creation manuscript, and returning to the starting point of the protection of the foundation of the right of the artwork.

About the Author

Lawyer Wu Yaping

Intellectual Property Center

Secretary General of Copyright Law Professional Committee

Professional direction:

intellectual property

1. Copyright: artistic works, photographic works, audio-visual works, computer software copyrights

2. Trademark infringement and unfair competition

Center Profile

Intellectual Property Center

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