Who will talk about copyright law?

The content of copyright refers to what rights copyright specifically includes. China's Copyright Law stipulates that copyright includes personal rights (also known as spiritual rights) and property rights (also known as economic rights).

From the concept of copyright, it is a right obtained by "creating a work" and is produced by the work, while neighboring rights and other rights are based on the dissemination of the work and cannot be considered as "writing". Therefore, neighboring rights are not considered in the content of copyright.

I. Individual rights

1, overview

Personal rights in copyright law are different from those in civil law. This right is inseparable from the author's personal life. From the origin of personal rights, at the end of18th century, under the influence of bourgeois natural human rights thought, the famous German philosopher Kant and others put forward the view that works are the extension of personality rights and personal rights. This view is adopted by the legislation of civil law countries and advocates the protection of the author's personal rights. Throughout the legislation of various countries, the personal rights of copyright generally include: the right to publish, the right to sign, the right to modify, the right to protect the integrity of the work, and the right to recover the published work.

For the protection of personal rights, the national legislation of civil law system and common law system has taken completely different positions. All countries in the civil law system advocate the recognition and protection of the author's personal rights. For example, the German copyright law has provisions to protect the author's personal rights from the beginning, stipulating that personal rights cannot be transferred. Common law countries did not recognize the author's personal rights at first, and then incorporated this content into copyright law.

For the content of personal rights in copyright law, there are still the following problems to be discussed in theory and practice:

(1) Whether a legal person can enjoy personal rights.

China's Copyright Law stipulates that a legal person or an unincorporated entity can become the subject of copyright, and naturally recognizes that a legal person or an unincorporated entity can enjoy personal rights. However, this issue is very different in the copyright laws of various countries in the world. Most countries that protect the author's personal rights stipulate in the copyright law that only natural persons can become authors, that is, only natural persons can enjoy personal rights. Because the personal right is the reflection of the author's personality, it is a recent thing to admit that a legal person has the will. The personal rights mentioned above come from the theory of "natural human rights". Obviously, this refers to the rights of natural persons, not the rights of unincorporated persons. On this issue, the International Federation of Writers and Composers pointed out in Article 6 of the Charter of Authors' Rights that only natural persons can enjoy personal rights when they become authors. With the development of society, it is a development trend to stipulate that legal persons become the main body of legal relations more and more widely. Since it is recognized as a fictional person, the legal person in the copyright law enjoys the personal rights of a natural person and can also be recognized as a fictional personal right. Although there are still many unsatisfactory explanations in this respect, the reality that legal persons enjoy copyright is undeniable, which needs to be further improved in theory.

(2) Whether personal rights can be transferred and inherited.

Generally speaking, personal rights are personality rights. Therefore, the transfer and inheritance of personal rights can be denied. The copyright laws of most countries stipulate that personal rights are inalienable, non-mandatory and non-transferable. However, in theory and practice, it seems that there are undeniable reasons and facts for the transfer and inheritance of some personal rights. We say that personal rights are inseparable from the author's person, but some rights in personal rights are also inseparable from property rights, such as the right to publish and the right to receive remuneration. If you want to get paid, you need to publish, and the publication of works is usually paid. Under normal circumstances, only the author (copyright owner) has the right to exercise the right of publication, and most of them are for one-time use. However, there is a practical problem. Some works were not published for various reasons before the author's death. Who will have the right to publish after the author dies? According to the principle of inheritance of property rights, in order to obtain property rights, works must be published, so it should be presumed that heirs have the right to publish works. If the heir decides not to publish, then no one else has the right to publish the work, which will not lead to the result that the work is buried with the author. This is contrary to the social significance of the work creation and the author's own creative purpose. If the author has made a final decision on the publication of the work in his lifetime, then the right to publish the work can only follow the author's wishes.

Look at the provisions of China's copyright law on the right to modify. The so-called right to modify refers to the right to modify or authorize others to modify a work. Authorizing others to modify here means that the right to modify can be transferred and separated from the author's personal rights.

With regard to the transfer of personal rights, Article 6 of the French Copyright Law stipulates that the personal rights in copyright can be transferred to his successor as an inheritance after the author's death, or the exercise of personal rights can be transferred to a third person who is not an heir according to the will. The same is true of German copyright law. Of course, no matter how personal rights are transferred, the right to sign cannot be transferred.

(3) The difference between personal rights in copyright and civil law.

Personal rights in civil law mainly refer to the right to life, health, freedom, personality and portrait. It can be seen that the personal right in civil law is an inherent right of human beings, and the difference between it and the personal right in copyright lies in the following aspects: First, from the perspective of the basis of rights, the personal right in civil law is based on the birth of a person, and once a person is born, he has life and personal rights. Personal rights in copyright are based on the creation of works, that is, the birth of works is the condition. This is the fundamental difference between the two. It is also the root cause of the following differences. Second, the personal rights in civil law are inherent in people's lives, and the personal rights referred to by copyright are limited to the author, that is, the person who creates the work. Third, the personal rights in civil law are limited to natural persons, and the personal rights mentioned in copyright law can be natural persons or legal persons according to the provisions of copyright law. Fourth, the personal rights in civil law, as far as most rights are concerned, disappear with the death of human life (after the death of the obligee, some personal rights are inviolable, such as the right to portrait). Personal rights in copyright law can exist alone even if the subject dies, such as the right of signature. Fifth, personal rights in civil law cannot be inherited and transferred, and some rights in personal rights in copyright law can be transferred and inherited. Sixth, the infringement of personal rights in civil law is mostly a direct infringement on the subject itself, while the infringement of personal rights in copyright is manifested in the illegal use of works.

2. Publishing right

The right of publication refers to the right to decide whether a work is open or not. There are two meanings here: one is to decide to publish, the other is to decide not to publish.

The right of publication specifically includes the following contents: when to publish; In what form, such as book form, serial form, broadcast form, etc. ; Where is it published? A published work should be an original or a copy of an unpublished work. If the work has been published or exhibited, there is no problem of publication. What is public? Mainly refers to preaching or showing to an unspecified majority in public, which is known to most people. If the work is only circulated among the author's friends, it will not be published.

In most cases, the right to publish and the right to use are combined, and the author also uses the work when publishing it. Moreover, when the author transfers the property right of unpublished works, it is often accompanied by the transfer of the right to publish.

The publication of works is of great significance, which shows the time and place of publication of works and plays an important role in applying the provisions of copyright protection period.

For the right of publication, countries all over the world have different regulations, and many countries do not recognize the right of publication, because for unpublished works after the author's death, whether published or not, the heirs of the right may go against the author's wishes. There is no provision in Berne Convention to protect the right of publication.

3. Signature right

The right of authorship is the right to show the identity of the author and sign his name on the work. The identity of the author can be confirmed by signature.

China's Copyright Law stipulates that a citizen, legal person or other organization who signs a work is the author unless there is proof to the contrary. The right of signature is the core of copyright, and only with the right of signature can the subject of copyright be confirmed.

Generally speaking, the author's right of authorship cannot be transferred. No matter how the work is used or how other rights of the work are transferred, the right of authorship cannot be changed. There is a question here, that is, if the contract in commissioned works Copyright Law stipulates that the copyright belongs to the entrusting party, does the author have the right of signature as the entrusted party? There is no special provision in the law, and it can only be considered that the trustee has no right to sign, but the entrusting party signs. The signer of the work here is not the author, which is also the case of "proof to the contrary" as stipulated in Article 11 of the Copyright Law.

There is another problem with the right of signature, that is, signing a pseudonym without signing a word. Pen names are mostly pseudonyms, which are common in works. This brings some difficulties to the confirmation of the author's identity right. In some countries, such as Japan and Germany, the author identity registration system has been implemented. Otherwise, once a dispute occurs, it is not conducive to court evidence collection.

Another problem is to sign someone else's name. Some authors publish their own works under the names of others (usually celebrities) for various reasons. This does not belong to the exercise of the author's right of authorship, but to the use or infringement of others' right of name.

4, the right to modify and protect the integrity of the work.

The right to modify and the right to protect the integrity of a work are essentially two aspects of the same thing. On the one hand, the author has the right to modify the work, on the other hand, he has the right to prohibit others from tampering with or distorting the work.

The right to modify refers to the right to modify or authorize others to modify a work.

Article 33 of the Copyright Law stipulates: "A book publisher may modify or abridge a work with the permission of the author". The second paragraph of this article also stipulates that "newspapers and periodical agencies may modify or abridge their works in words, and the modification of contents shall be subject to the permission of the author". What is actually stipulated here is that the author authorizes others to modify the work. Because of the complexity of the ideological content embodied in books, it is difficult for others except the author to fully understand their intentions, so they cannot be modified at will to avoid distorting the works. It is not necessary to obtain the consent of the original author to modify the text of articles published in newspapers and periodicals, because newspapers and periodicals are limited by the size of the page, and some works are allowed to be modified and adjusted appropriately, but the content cannot be changed.

A difficult problem in the right of modification is the modification of the sold artworks. If the author wants to modify the sold paintings, he must obtain the consent of the owner of the paintings. In fact, the author's right to modify has been restricted with the transfer of the work, because the buyer is interested in the original when purchasing the work.

The right to protect the integrity of a work refers to the right to protect the work from distortion and tampering. Different from the above rights, the author of the above rights can directly exercise it, while the right to protect the integrity of the work depends on the judicial organs, which can be called indirect exercise of rights.

Second, property rights.

The property right in copyright refers to the right that can bring economic benefits to the copyright owner.

The realization of this economic benefit depends on the use of the work by the copyright owner. It can be seen that the property right in copyright is different from the property right in civil law, which is mainly manifested in:

(1) Rights have different manifestations.

The real right in civil law is directly manifested as the owner's right to possess and dispose of things. On the other hand, the property right of copyright is based on the creation of a work, and the author can obtain economic benefits by using the work, which can be called a kind of expectation right. Of course, sometimes you can sell your works at one time and get economic benefits. Our country does not advocate selling works at one time.

(2) The property law in civil law should be permanently protected, even if everyone is still protected by law after death, which can be passed down from generation to generation.

The protection of property rights in copyright has a time limit. In China, the author is an individual citizen whose rights are protected for 50 years after his death. The term of protection of the rights of a work by a legal person or entity without legal personality is 50 years after the first publication of the work. After the above-mentioned protection period, the work will enter the public domain and no longer enjoy the right to receive remuneration.

(3) There are not too many restrictions on the exercise of property rights by law, but there are many restrictions on the exercise of copyright property rights, such as fair use without payment.

According to the provisions of China's copyright law, the property right of copyright refers to the right of the copyright owner to use the work by copying, distributing, renting, exhibiting, performing, screening, broadcasting, information network dissemination, shooting or adaptation, translation, assembly, etc., and the right to permit others to use the work in the above ways and get corresponding remuneration. Therefore, the use of the work can be for your own use or with the permission of others. The copyright owner may or may not be paid for his own use. This use is based on the author's personal right to dispose of the work. As far as the above-mentioned ways of use are concerned, the author's right to use will also be restricted by the actual conditions, and the copyright owner is not allowed to use it in any way he wants. As far as the law is concerned, there are not too many restrictions on the author's own exercise of rights, as long as it does not affect the public interest, it can be used. This is a common way to use a work by licensing others. Due to the limitation of economic conditions and the author's own energy, the author often cannot exercise these property rights in person, but relies on the favorable conditions of others (including legal persons) to make full use of his works. Of course, this kind of use is within the scope permitted by law and should comply with the relevant provisions of the law, such as paying remuneration to the author.

1, all rights reserved.

The right to copy is the right of the copyright owner to decide whether to carry out the above-mentioned copying behavior or prohibit others from copying his protected works, and it is the most important, basic and universal right among copyright property rights.

Reproduction refers to the act of making one or more copies of a work by means of printing, copying, rubbing, recording, video recording, copying and remaking.

The characteristic of reproduction is that the copied works have not changed in content and form compared with the original works. The form here has not changed, which means that the expression of the work has not changed, just like a novel or a poem, not that the carrier form of the work has not changed. For example, the same novel was copied in the 32nd format, copied in the format of 16, and copied in newspapers and periodicals. The way of copying can be manual or machine.

According to Berne Convention, copying includes copying from plane to three dimensions. However, the copyright in our country does not clearly stipulate the reproduction from plane to three-dimensional or from three-dimensional to plane. 199 1 Paragraph 2 of Article 52 of the Copyright Law stipulates: "The construction and manufacture of industrial products according to engineering design, product design drawings and their descriptions does not belong to the reproduction mentioned in this Law." However, the copyright law of 200 1 deleted this clause. Therefore, this is still a controversial issue.

2. Distribution right

The right of distribution refers to the right to provide the original or duplicate of a work to the public by way of sale or gift.

Distribution is an important channel to spread works and realize the economic rights of copyright owners. Only through distribution can it be accepted by the public. The combination of reproduction and distribution is publishing. The right of publication is enjoyed by the copyright owner, who can authorize others to publish, so the right of publication naturally becomes an economic right of the copyright owner.

The right of distribution can be paid or unpaid, but it should reflect the publicity of distribution, that is, not to provide works to one or a few specific people, but to provide works to an unspecified majority of the public.

3. Lease right

The right to rent refers to the right to allow others to temporarily use film works and works and computer software created by methods similar to filming.

Lease right is a right listed separately after the revision of copyright law, which was originally stipulated as one of the distribution methods in the implementation regulations of copyright law.

The object of rental right is limited to film works, works created by methods similar to film production and computer software. Moreover, when computer software is rented together with other equipment, and the software is not the main object of rental, the software copyright owner cannot claim the right to rent.

The copyright owner may exercise the lease right by himself or authorize others to exercise the lease right. But more often, the copyright owner will authorize the copyright collective management institution to exercise its lease right.

4. Right to display

The right of exhibition refers to the right to publicly display the originals or copies of artistic works and photographic works.

The works that can be exhibited are generally limited to art works and photography works, because these two kinds of works are visual works, and the content of their works is not easy to be understood by people in other modes of communication, and exhibition is the best channel.

About the exhibition place, it can be in the exhibition hall or in other public places, such as streets and shop windows. The exhibition should reflect the characteristics of publicity. Exhibitions can be profitable or non-profitable.

Regarding portrait photography, does the photographer (that is, the author) have the right to show his own portraits? This issue is not explicitly stipulated in the law. According to the spirit of the law, the right of portrait is a personal right stipulated in the civil law and a basic right of the human body. Therefore, it is not allowed to violate the right to portrait in any way. Therefore, the legal protection of personal rights should be followed, so the exhibition right should be owned by the photographer.

The right to exhibit after the transfer of the original works of art has been clearly stipulated by law. With the transfer of the original work, it is no longer enjoyed by the original copyright owner, but exercised by the owner of the original work.

5. Executive power

The right to perform is the right to publicly perform a work and publicly broadcast the performance of the work in various ways.

Performance can be divided into live performance and mechanical performance. The former refers to the direct display of works through the body shape and movements of the human body; The latter refers to the repeated performance of some works with the help of mechanical equipment, such as playing audio-visual works through audio-visual equipment.

The content of performance right includes the copyright owner's right to publicly perform his own works, the right to authorize others to publicly perform his own works, the right to prohibit others from publicly performing his own works without consent, and the right to control the public performance of his own works.

For the right to perform, due to the uncertainty of the number of performances, it is bound to cause trouble if the author's consent is required every time. China's copyright law restricts it, stipulating that others need to obtain the consent of the copyright owner when using unpublished works, which is determined by the right of publication of copyright; The use of a published work by others does not require the consent of the copyright owner, unless the copyright owner declares that it is not allowed to use it. Moreover, in the above two ways of use, users must use the work in good faith, not distort the work, not for some bad purposes, and must pay remuneration to the copyright owner.

6, the right to display

The right of projection refers to the right to publicly reproduce art, photography, movies and works created by methods similar to filming through projectors, slide projectors and other technical equipment.

This is a new right after the revision of the copyright law.

But in theory, it has a competitive relationship with the mechanical performance right in the above performance rights.

7. Broadcasting rights

Broadcasting right refers to the right to publicly broadcast or disseminate works by wireless means, broadcast works to the public by wired transmission or rebroadcasting, and broadcast works to the public through loudspeakers or other similar tools for transmitting symbols, sounds and images.

Technically speaking, the right to broadcast must be exercised through radio stations and television stations, and the broadcasting behavior is regulated by national administrative regulations and departmental rules. Therefore, there is often the fact that broadcasting is authorized.

8. Right of information network communication

The right of information network communication refers to the right to provide works to the public by wired or wireless means, so that the public can obtain works at the time and place they choose.

This is a new right added in the revision of copyright law to cope with the development of information network. Prior to this, the court often protected the copyright owner by identifying the act of uploading other people's works to the network as illegal copying (that is, expanding the right to interpret and copy). However, it is difficult for copying to properly and comprehensively reflect the dynamic characteristics of works' dissemination in the network, so it needs legislative independence.

9, the right to shoot

The right to make a film refers to the right to fix a work on a carrier by making a film or by similar means.

The film right can be exercised by itself or by authorizing others to exercise it.

However, there are also many cases in which others are authorized to exercise the right to shoot. Because copyright owners want to make their own works into movies or similar works, they often have to turn to the producers, because movies or similar works are typical synthetic works and cannot be completed alone. Because of this, the film right is also called "film right".

10, editing right

The right of adaptation refers to the right to change the original work and create a new work with originality.

It is easier to understand the transformation of a work from one form to another. It is not easy to distinguish those whose forms have not changed much, such as novels adapted into short stories. Adaptation must include the creative work of the adapter, which lies in the innovation or change of expression, rather than the repetition of the original content. The works formed after adaptation constitute "deductive works".

The right of adaptation can be exercised by oneself or by others. The reason why the works should be adapted is to meet the requirements of different means of communication.

1 1, translation right

Translation right refers to the right to convert a work from one language to another.

In addition to the author's own translation, others can also translate, but with the consent of the original author. With regard to translation, the Copyright Law stipulates two exceptions that do not require the consent of the original author: First, the government does not need to obtain the consent of the foreign author when issuing compulsory licenses to foreign works. Second, translating published works written in Chinese by China citizens, legal persons or other organizations into works written in minority languages and publishing them in China is regarded as fair use. This is to spread Chinese culture to ethnic minorities and improve their cultural quality. Therefore, it is not necessary to obtain the consent of the original author or pay him remuneration.

12, right assembly

The right of assembly refers to the right to assemble a work or a fragment of a work into a new work through selection or arrangement.

If the exercise of assembly right is original in the selection and arrangement of materials, an assembly work will be formed.

In addition to the twelve rights listed above, in order to avoid the lag of legislation, the Copyright Law also stipulates a general principle, that is, "other rights that copyright owners should enjoy". The copyright owner may license others to exercise or transfer these property rights in whole or in part, and receive remuneration in accordance with the agreement or the relevant provisions of this law.

It should be noted that not every work enjoys all the above property rights. For example, the rental object is limited to film works, works created by methods similar to film production and computer software, and the copyright owners of other works cannot exercise the right to rent.

In addition, some foreign countries have stipulated other rights. For example, France, Germany, Italy and more than a dozen other countries have stipulated the right of inheritance. Generally speaking, it means that after a work of art (including artworks) is sold, if the buyer resells it to others and gets more money than what he paid at the time of purchase, the original author of the work has the right to claim a certain proportion of the money. No matter how many times the work is resold, as long as the price is higher than the purchase price, the original author has the right to share a part. For another example, German copyright law also stipulates the right of contact. It refers to the author's right to ask the owner to consult the work in order to copy or adapt his work if necessary and without harming the legitimate rights and interests of the owner. For example, the original author has the right to consult manuscripts and works of art preserved by others. The content of copyright in China does not include the right to pursue and the right to contact.