Right to integrity and the proposed resale royalty right and notification right in the PRC copyright law.

• Author: Ma, David S.W.
• Position: People's Republic of China

This Note discusses the enforcement of the right to integrity by PRC courts and compares the Resale Royalty Right and Notification Right in the proposed amendment to the PRC Copyright Law to the laws of the United Kingdom and the United States. PRC courts have not consistently enforced the right to integrity. In order to secure international confidence in the PRC legal system and art market, China should implement detailed regulations governing the enforcement of the Resale Royalty Right and Notification Right and the courts should consistently enforce such rights.

1. THE PRC COPYRIGHT LAW THIRD AMENDMENT A. Amended Personal Rights B. A New Resale Royalty Right C. A New Notification Right before Destruction II. BACKGROUND TO THE PRC COPYRIGHT LAW THIRD AMENDMENT A. The Resale Royalty Right B. The Notification Right III. MORAL RIGHTS ORIGINS AND THEIR RECEPTION IN THE UNITED KINGDOM AND THE UNITED STATES IV. THE PRC APPROACH TO MORAL RIGHTS AND THE RIGHT TO INTEGRITY A. The Right to Integrity--Modification B. The Right to Integrity--Contextual Treatment V. RESALE ROYALTY RIGHT AND NOTIFICATION RIGHT IN THE UNITED KINGDOM, UNITED STATES, AND THE PRC A. The Resale Royalty Right B. The Notification Right VI. CONCLUSION I. THE PRC COPYRIGHT LAW THIRD AMENDMENT

   On October 30, 2012, the General Administration of Press and Publication and the National Copyright Administration of the People's Republic of China (PRC) held a conference in Beijing to discuss the third draft of the proposed third amendment to the PRC Copyright Law, which in due course will be submitted to the Central People's Government for approval. (1) Unlike the two preceding drafts that were released for public consultation, the text of this third draft is not available to the public. (2)

   The PRC Copyright Law, first promulgated on September 7, 1990, was previously amended on October 27, 2001 and February 26, 2010. (3) The first amendment came about as a fulfillment of the prerequisites to the PRC's entry into the World Trade Organization (WTO), and the second amendment was made in compliance with the recommendations made by the dispute settlement body of the WTO in a dispute between the PRC and the United States. (4) Instead of using the more common approach of "marking-up" the existing statute, the present third amendment is a major overhaul that will replace the entire text of the current Copyright Law. The new draft is based on the existing statute but displaces the numbering of most articles.

   This Note outlines and discusses the background to selected sections of the proposed amendments, examines how the PRC courts inconsistently enforced the right to integrity, and compares the proposed Resale Royalty Right and Notification Right in the second draft of the third amendment to their counterparts in the United Kingdom and the United States. In order to secure international confidence in the PRC legal system and art market, China should implement detailed regulations governing the enforcement of the Resale Royalty Right and Notification Right and the courts should consistently enforce such rights.

   1. Amended Personal Rights

      Article 11 of the second draft of the proposed third amendment revises the definition of the right of attribution from "the right to be identified as the author of a work and to mark the same on the work" (5) to "the right to decide whether to and how to disclose the identity as author."(6) The definition of the right of alteration (7) is collapsed into that of the right to integrity, (8) which now includes both "the right to authorize others to modify the work" and "the right to prevent any distortion or mutilation of the work." (9)

   2. A New Resale Royalty Right

      Article 12 creates a right to resale royalties (Resale Royalty Right) for the original of an artistic work and photographic work as well as the original script of a literary and musical work. (10) The author (or its successor or beneficiary) has a right to royalties when ownership of such original work is transferred through auction after its first sale. (11) Such right is not transferrable and cannot be waived. (12) The right is enjoyed by foreigners or stateless persons if their countries of domicile or residence recognizes the same rights for Chinese authors. (13)

   3. A New Notification Right before Destruction

      Article 20 provides that "where the original of an artistic work on public display is the only medium embodying the work, the owner of the work shall notify the author with reasonable notice before its removal, destruction or other forms of factual disposition, so that the author may protect its copyright by repurchasing the work, copying the work or otherwise." (14) This right to notification (Notification Right) could be contracted out between the owner of the work who puts it on display and the author. (15)

2. BACKGROUND TO THE PRC COPYRIGHT LAW THIRD AMENDMENT

   Unlike the United States and the United Kingdom, official record of the meetings leading up to the amendment drafts in the PRC is not available to the public. (16) The official comments emphasized the overall policy considerations and did not include any details or specifics.(17) The record stated that the reform to the PRC Copyright Law is an exercise motivated by state policy designating intellectual property as a "strategic field for national development." (18) The specified reasons for the amendments were: (1) an objective necessity to perfect the existing legislation; (2) a response to developments in technology; (3) an adaptation to the international landscape; (4) an effort to complete the intellectual property system; and (5) an answer to societal concerns. (19)

   1. The Resale Royalty Right

      The limited commentary remarked that the Resale Royalty Right is added because of the rapidly developing and growing local art market. (20) It is inserted as a standalone provision, as it is a right to remuneration and is different in nature from personal and economic rights. (21) Referencing the laws of other jurisdictions, the Resale Royalty Right is limited to transfer by auction in order to enhance compliance. (22)

   2. The Notification Right

      The Notification Right was added as a pragmatic response to disputes between copyright owners and owners of the physical work, and concerns raised by members of the art world and the judiciary. (23) The right is qualified by the requirement that the work must be the sole embodiment of the artistic work, and the parties are free to opt out from the statutory requirements. (24)

3. MORAL RIGHTS ORIGINS AND THEIR RECEPTION IN THE UNITED KINGDOM AND THE UNITED STATES

   Moral rights are of French origin (25) and based on the premise that there is an "intimate bond which exists between a literary or artistic work and its author's personality" that needs to be protected. (26) The rationale is that the work is deemed to be an extension of the author, and "to mistreat the work of art is to mistreat the artist, to invade his area of privacy, to impair his personality." (27) The work should be protected from alteration or distortion so as to encourage artists to continue to produce creative works. Article 6bis of the Berne Convention requires protection of the author's rights to "claim authorship of the work" and to "object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation." (28) The Berne Convention is not self-executing in all contracting parties (29) and is implemented to varying extents in jurisdictions that enact local legislations to comply with the Berne requirements. As one leading copyright expert commented:

   The European culture of copyright places authors at its center, giving them as a matter of natural right control over every use of their works that may affect their interests....By contrast, the American culture of copyright centers on a hard, utilitarian calculus that balances the needs of copyright producers against the needs of copyright consumers, a calculus that leaves authors at the margins of its equation. (30) For example, the United Kingdom offers moral rights protection to authors of literary, dramatic, musical, or artistic works and film directors under the Copyright, Designs and Patents Act of 1988. Protected rights include the right to be identified as author or director (31) and the right to object to derogatory treatment of work, (32) both co-terminus with the copyright term, (33) as well as the right to object to false attribution (34) until twenty years after the death of the author or director. (35)

   In the United States, copyright law "does not recognize moral rights or provide a cause of action for their violation, since the law seeks to vindicate the economic, rather than the personal, rights of authors." (36) The focus on economic rights of authors contributed to the reluctance of the U.S. Congress to legislate for a wide protection of moral rights. Instead, moral rights are protected by a patchwork of laws (37) ranging from [section] 43(a) of the Lanham Act, which prevents false attribution injurious to business or personal reputation, (38) to a range of state-specific laws (39) and the laws of contract, (40) defamation (41) and unfair competition. (42) The federal Visual Artists Rights Act (VARA) protects the rights of attribution and the right to integrity (43) for the duration of the life of its author, (44) but such protection is limited to works of visual art. (45)

4. THE PRC APPROACH TO MORAL...