Site:Home > Frontier Theory > Copyright > Detail Font Size:Large Middle Small

Author's Moral Rights in UK and China

Post Time:2007-9-14 15:12:29 Author:Dr. Uma Suthersanen Dr. Makeen Makeen Writer: He Zhonglin Source:Judicial Protection of IPR in China Views:

M.A. Industrial & Intellectual Property Assignment One

Question 3: "Moral rights are considered to be the spiritual child of the author. However, this theory has never been fully appreciated in the common law countries."

Discuss this statement with reference to at least one civil law jurisdiction, and one common law jurisdiction.

Author's Moral Rights in UK and China

utors: Dr. Uma Suthersanen

     Dr. Makeen Makeen

Writer: He Zhonglin

Law Department, School of African and Oriental Studies, University of London

 January 14, 2002

CONTENTS

Table of Cases
Table of Abbreviations
 
1.INTRODUCTION
2.OBLIGATION UNDER INTERNATIONAL CONVENTION
3. COMPARISON BETWEEN UK AND CHINA
 3.1 Domestic Origin and Development
    3.1.1 UK
    3.1.2 China
 3.2 Legislative Model
    3.2.1 The Position of the Moral Rights in the Legislative Framework
    3.2.2 Legislative Technique
 3.3 Subject (or Holder) and Types
    3.3.1 Subject of Moral rights
    3.3.2 Types of Moral Rights
 3.4 Divulgation Right
 3.5 Paternity Right
    3.5.1 UK
    3.5.2 China
 3.6 Integrity Right
    3.6.1 UK
    3.6.2 China
    3.6.3 Retraction Right
 3.7 Right to Privacy of Certain Works
 3.8 Performer's Moral Rights
 3.9 Duration
 3.10 Assignability and Waiver
4. CONCLUSION
 
BIBLIOGRAPHY


 
 
Table of Cases
 
UK
 Millar v Taylor, (1769) 98 ER 201
 Chaplin v Leslie Frewin (Publishers) Ltd. and Others, [1966] Ch. 71
 Clark v Associated Newspapers Ltd. [1998] 1 All E.R. 959; [1998] R.P.C. 261
 Prince Albert v. Strange, (1848) 2 De Gex & Smale 652, 64 E.R. 293 (1849), 1 MacNaghten & Gordon 25, 41 E.R. 117 (1849)
 Wood v. Chart, (1870) L.R. 10 Eq. 193
 Tidy v. Trustees of the Natural History Museum [1996] E.I.P.R. D-86, (1997) 39 I.P.R. 501
 Pasterfield v Denham [1999] F.S.R. 168
 Frisby v British Broadcasting Corp. [1967] Ch. 932
 
China
 Wu Guanzhong v Shanghai Duoyunxuan & Hong Kong Yongcheng
 Jia Pingao v China Xiju (Drama) Press & Others
 


Table of Abbreviations
 
Legislation
 

AWCPA
Architectural Works Copyright Protection Act, 1990, the U.S.A.
Berne Convention
Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971)
CA 1956
Copyright Act 1956, the U.K.
CCA
Copyright Act (amended in 2001), P.R.China
CDPA 1988
Copyright, Designs and Patents Act 1988 (1988, c. 48), the U.K.
DQCL
Da Qing Copyright Law (1910), China
FACA 1862
Fine Arts Copyright Act 1862, the U.K.
GPCC
General Principles of Civil Code (1986), P.R.China
IPC
Intellectual Property Code, France
IRCCA
Implementing Regulations of the Chinese Copyright Act, P.R.China (1991)
RPCS
Implementing Regulations for the Protection of Computer Software, P.R.China (amended in 2001)
TRIPs
Agreement on Trade-Related Aspects of Intellectual Property Rights including Trade in Counterfeit Goods (1994)
UCC
Universal Copyright Convention (As Revised at Paris, 1971)
USCA
The United States Copyright Act
VARA 1990
Visual Artists Act of 1990, the U.S.A
WCT
WIPO Copyright Treaty (1996)
WPPT
WIPO Performances and Phonograms Treaty (1996)

 
Organization
 

WIPO
World Intellectual Property Organization
WTO
World Trade Organization

 
Journals
 

A.I.P.J.
Australian Intellectual Property Journal
All E.R.
All England Report
C.L.S.R.
Computer Law & Security Report
C.P.T.
China Patents & Trademarks
E.I.P.R.
European Intellectual Property Review
I.I.C.
International Review and Industrial Property and Copyright Law
J.A.M.
Journal of Arts Management
R.P.C.
Reports of Patent, Design and Trade Mark Cases

 


 
Author's Moral Rights in UK and China
 
 
1.INTRODUCTION
 
The extent and the method of providing legal protection for an author's moral rights (or the droit moral) under domestic law has been a topic of continuous debate since the Berne Convention for the Protection of Literary and Artistic Works,[1] which introduced the concept of such rights in 1928. It has remained a hot issue both internally in common law countries and internationally between the two main law systems. Moral rights, as proprietary rights which protect the personality of authors, have been progressively enhanced and separately expressed alongside authors' economic interests in Continental systems over the past century. By contrast, Anglo-American tradition has manifested a certain scepticism towards whether or not authors deserve special protection in law.[2] Although most common law countries have become parties to the Berne Convention and have to ensure authors’ moral rights at least, to a minimum standard, it seems that they are still reluctant to fully adopt the theory of moral rights in their copyright law, and many practitioners in the field of copyright-related industries appear to have an antipathy to this.[3]

It is interesting to compare moral rights law and practice of the United Kingdom with that of the People's Republic of China. Both countries eventually and very largely for the first time[4], introduced moral rights to their copyright law late and at about the same time, i.e. in 1988 and 1990 respectively. The accession to the Paris Act of Berne Convention was for both countries 2 years afterwards - in 1990 and 1992,[5] respectively. The former legal system is a fairly typical representative of an Anglo-Saxon law system with quite a long legal history of copyright protection. Its law has extensively influenced the common law world. The latter, however, is a comparatively new member of the civil law family and the biggest developing country in the world.[6]

As will be demonstrated in the following comparison and analysis, the author's moral rights in Britain, have been expressly protected after long term prejudice or vagueness, but this protection is confined to a narrow ambit with many considerably detailed restraints and exemptions, neither has it been theoretically and systematically accepted. In Chinese law, such rights have been strongly protected in a quite broad scope and with very limited exceptions, but many practical problems remain and need to be further clarified in the courts. However, in theory, the protection has been fundamentally and fully adopted. To a large extent, these different approaches are derived from not only their own legal tradition but also the legislative attitude of pragmatism in the UK and of idealism in China.
 
 
2.OBLIGATION UNDER INTERNATIONAL CONVENTIONS
 
The moral rights provisions, Article 6bis, emerging firstly in international copyright convention were the text of the Rome Revision of Berne Convention in 1928. Some revisions have been made in the succeeding Acts of the Convention.[7] Up until October 15, 2001, 148 States, including the UK and China, have become signatories to the Berne Convention.[8]
 
Moral rights are not mentioned in the Universal Copyright Convention (UCC).[9]does not exclude the obligation from this Article.[11] The WIPO Performances and Phonograms Treaty (WPPT) lays down, for the first time, basic provisions on the moral rights of performers, modelled on Article 6bis, albeit limited to live aural performances or performances fixed in phonograms.[12] [13] The TRIPs Agreement even excludes the application of Article 6bis of the Berne Convention.[10] However, the WIPO Copyright Treaty (WCT)
 
At present, the genuine duties of protection of moral rights under international convention are derived from the Berne Convention. The Article 6bis provides:
" (1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right 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. (2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained. (3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed."
 
This Article sets up the framework of protection and the foremost provisions of the author's moral rights.[14] Most domestic laws and other international conventions just follow or are based on such provisions.
 
 
3. COMPARISON BETWEEN UK AND CHINA
 
3.1 Domestic Origin and Development
3.1.1 UK
It seems that English law is somewhat half-hearted about seeking to protect moral rights by special legislation. Many commentators wonder whether or not the UK has even met the requirements of the Berne Convention.[15]

Over two centuries ago, in the seminal case of Millar v Taylor,[16] the common law had a precious opportunity to grant direct protection to moral rights, but unfortunately, it failed to take it.[17] Thereafter, there was no explicit recognition of moral rights through the law of copyright until the Copyright, Designs and Patents Act 1988 (CDPA 1988).[18] This legislation made the first real progress in the history of the protection of moral rights in UK and provided nearly all the most important provisions in a very scrupulous format.[19] Before this, the matter had been officially considered twice by the copyright reform committees.[20] In 1952, the Gregory Committee Report on Copyright Law, which led to the Copyright Act 1956 (CA 1956), gave a cursory answer that the existing English law was generally adequate to deal with most problems concerning the matter.[21] However, in 1977, the Whitford Committee came to the opposite conclusion that the existing English law was not sufficient to meet its Convention obligations and should introduce express moral rights provisions into English copyright law.[22] Ten years later, the main recommendation was contained in CDPA 1988, but still with incomplete treatment of the subject matter.
 
Before the CDPA 1988, English law had left authors to secure protection for moral interests through contract law or common law remedies for such torts as disclosure of confidential materials, defamation or injurious falsehood, passing-off,[23] and claims under the other two trivial Acts which had existed and were extremely narrow in their application.[24]
 
3.1.2 China
It appears that China automatically and historically accepted the theory of an author's moral rights and the legislative model of continental law which recognizes it. China’s domestic law incorporates the Convention's obligations in a full and precise way. The subject was never as intensely debated as was the issue of economic rights.
 
Before the founding of the People's Republic of China (in 1949), there were three copyright statutes, which were promulgated separately in 1910, 1915, and 1928. All provided protection for author's moral rights in comparative detail. Although the Da Qing Copyright Law (DQCL), the first copyright statute, was not actually enforced because of the 1911 Revolution, it had great influence on the later copyright laws.[25] After 1949, P.R. China made some efforts to establish a modern copyright system, but it was frequently interrupted by a series of political movements. Until 1986, Article 94 of the General Principles of Civil Code of China (GPCC) established the protection of copyright including author's moral rights, for the first time.[26] In 1990, P.R. China promulgated its first copyright statute - the Chinese Copyright Act (CCA).[27] The CCA and its Implementing Regulations (IRCCA) provided a more explicit and fundamental protection of author's moral rights.[28] Although CCA was amended on October 27, 2001, nearly all the moral rights provisions have remained in their original formulation.[29] In addition, the Regulations for the Protection of Computer Software (RPCS) also affords some special provisions to protect software copyright holders' or developer's moral rights.[30]
 
3.2 Legislative Model
3.2.1 The Position of Moral Rights in the Legislative Framework
Firstly, under the UK system, copyright and moral rights are separated.[31] Under CDPA 1988, "copyright" is granted by virtue of Chapter I of Part I, whereas moral rights are primarily granted in Chapter IV of Part I. This indicates that the moral rights are not simply an aspect of copyright - the law emphasizes copyright as a property right rather than an ''author's right''.
 
Like European continental laws, CCA adopts the "dualist" approach,[32] whereby the copyright is composed of two separate sets of rights, namely the personality or moral rights and the property or economic rights.[33] In this scheme of things, the author is in the front and centre stage; later exploiters and users of the work are secondary players and stand in the wings.[34]
 
3.2.2 Legislative Technique
Unlike many other countries, the moral rights provisions in CDPA 1988 are drafted in considerable detail. However, the surrounding conditions and the many exceptions to their application substantially undermine their real value.[35] On the one hand, the more exclusive provisions of rights mean a narrower scope of protection, like claims in a patent specification. Sections 77 to 83, regulate paternity right and integrity right. The negative subsections, which limit or except the rights consist of more than half the total and even the positive provisions confine the rights in certain circumstances. On the other hand, a great deal of vagueness and scope for dispute remains whereby the rights are neither conferred to author nor excluded from enjoying.

The CCA confers fundamental moral rights to authors in principle but with a few restrictive provisions. This model means maximum opportunity for liability to arise and the minimum of exceptions apply, although, in practice, it may also leave considerable difficulty in enforcement to the courts.
 
3.3 Subject (or Holder) and Types
3.3.1 Subject of Moral rights
Under UK law, the right to be identified as author is only given to the creators of literary, dramatic, musical and artistic works, and also to the directors of copyright film.[36] It is not accorded to other persons who are treated by CDPA 1988 as "authors" for copyright purposes.[37] It is of note that the right to object to derogatory treatment is not only given to the person who creates a copyright work, but may also be conferred on the author's or director's employer.[38] However, the developer or holder of a computer program, is not entitled to action related moral rights.[39]
 
According to Article 9 and 11 of CCA,[40] it is safe to say that either an author (a "natural person") or an organization (in certain circumstances) may have the moral rights for any kind of work including computer software.[41] The scriptwriter, director, cameraman, lyricist, composer and other authors of a cinematographic work or analogous work shall also enjoy the right of authorship (paternity right) in the work, while the other rights included in the copyright shall be enjoyed by the producer of the work.[42]
 
3.3.2 Types of Moral Rights
CDPA 1988 now recognizes the following rights: (a) the right of paternity;[43] (b) the right of integrity;[44] (c) the right to object to false attribution;[45] (d) the right to privacy of certain photographs and films.[46] In fact there are only two types of moral right conferred, because item (c) can be included under (a) and item (d) is just a general personality right in relation to certain works, not the author's real right.
 
Article 10 of CCA lists four types of moral rights: (a) the right of publication; (b) the right of authorship; (c) the right of alteration; (d) the right of integrity. In fact, item (c) and (d) are the two sides of one coin. Article 8 of RPCS provides three types of computer software copyright holder's moral right: (a) right of publication; (b) right of authorship; (c) right of alteration.[47]
 
Although there is no commonly accepted agreement about the full range of moral rights in the world,[48] both the UK and China, like most countries, under their copyright law, provide the right of paternity and the right of integrity, which are required by Berne Convention. Apparently, the real difference is that both the right of publication and software holder's moral rights have been clearly rendered in China, whereas there is no expression of the former right in the UK and the latter right has been purposely excluded there.
 
3.4 Divulgation Right
The divulgation (or "dissemination" or "disclosure") right is the author's right to decided when, where and in what form the work will be divulged to any other person or persons.[49] Such right is not mentioned in Berne Convention.[50]
 
As many countries have done, the CDPA 1988 does not promulgate the statutory right to prevent the unauthorized disclosure of author's works and leaves it to the law of contract or confidence to deal with it. There was early case law recognizing a right in common law to preclude the unauthorized disclosure of works.[51] However, sometimes, it may be difficult to protect such a right when the author cannot rely on breach of contract or confidence.
 
The right of divulgation has been translated as the ''right of publication'' in Chinese law, which has the broad meaning of ''available to the public'' in any form including live performance, exhibition, or broadcasting, and of course, publication in the strict sense of the distribution of hard copies. This right also applies in the cases of copyright exemptions and compulsory licensing, in which this right must continue to be respected.[52]
 
3.5 Paternity Right
The paternity right is also called the "identification right" or "attribution right". It is the right of the author to have his name on the work, or to choose to have the work published anonymously or pseudonymously.[53] Sometimes the right against false attribution of works is also included in this.
 
3.5.1 UK
The important issues here are the two notable limitations of this right under CDPA 1988. First, the right can only be exercisable in certain circumstances (generally commercial use, such as commercial publication, film showing, etc.),[54] and it is not infringed unless the right has been "asserted" by the author in accordance with section 78.[55] Especially, the requirement of assertion is a very controversial limitation imposed upon this right. The government pointed out that Article 6bis states, "the author shall have the right to claim authorship" and did not require him to be given an absolute right to be identified. However, it must be at least arguable that the requirement of assertion is contrary to Article 5(2) of Berne Convention, which provides that "the enjoyment and the exercise of these rights shall not be subject to any formality."[56] Secondly, there are a number of exceptions to such rights. The right does not apply to computer programs, computer-generated works, designs of typefaces, works protected by Crown or similar copyright, any work made for reporting current events, employment work and collective works.[57] Other exceptions include fair dealing for purpose of reporting current events in a sound recording, film, broadcast, or cable program, incidental inclusion, examination questions, and other more specific cases.[58]
 
Another issue should also be noticed is the right against false attribution, which is the converse of the right to be identified and is separately recognized under CDPA 1988. All persons have the right not to have authorship attributed to works or films they have not created, no matter whether he is an author or director or not, and whether the work enjoys copyright protection or not.[59]
 
3.5.2 China
The right of paternity is often treated as the ''right of authorship" in China. The right is prominently protected under the law since it contains the strongest exclusive personality among all kinds of moral right.[60] Unlike the UK, there is no any assertion requirement for conditions constituting an infringement of the right. CCA does not exclude this right in any circumstance, except for works unprotected by the Act or the work of an unidentified author.[61]
 
On the contrary, the law emphasizes respect of such right in the following instances: an employee author retaining the right of authorship in a employment work.[62]; the director and other authors of a cinematographic work or analogous work retaining the paternity right to such a work;[63] the lawful holder of the original copy of an unidentified work, exercising the copyright except for the right of authorship;[64] the author in a situation involving fair dealing and compulsory licensing.[65] Furthermore, RPCS offers the protection of computer software developer's identity.[66]
 
With regard to false attribution, CCA treats it as a copyright issue in a quite similar fashion to the UK, though it has long been argued in China.[67] Article 46(3) provides that it is an infringement to have “one's name mentioned in connection with a work created by another, in order to seek personal fame and gain, where one has not taken part in the creation of the work". Article 47(8) specifies that "producing or selling a work where the signature of author is forged" constitutes an infringement of such author's right.[68]
 
There have been instances where a non-author was credited as an author of a work. In 1996, in Wu Guanzhong v Shanghai Duoyunxuan & Hong Kong Yongcheng,[69] the court held that that constituted an infringement of copyright. Before this case, in Jia Pingao v China Xiju (Drama) Press & Others, the plaintiff invoked the protection of his right of personal name under GPCC and succeeded.[70] The latest amendment of CCA not only supported the opinion in the first case but extended the application of Article 47(8) to all kinds of work. This demonstrates again that the legislation emphasizes the protection of the right of authorship.
 
3.6 Integrity Right
The right of integrity (sometimes called the "right of respect") extends to prevent to derogatory treatment of a work and so may be regarded as the most important of the moral rights.
 
3.6.1 UK
This right under CDPA 1988 draws upon Article 6bis of Berne Convention but in apparently narrower terms.[71] To demonstrate violation of the integrity right, it is necessary to show, at least: (i) that the work or film is the subject of ''treatment''; and (ii) that this treatment is derogatory.
 
Unlike the paternity right, fortunately, this right does not have to be asserted before it can be claimed. First, the requirement of a ''treatment'' must be an ''addition to, deletion from or alteration to or adaptation of the work.'' It does not cover, however, a ''treatment'' where there is a translation of a literary or dramatic work or an arrangement or transposition of a musical work involving no more than a change of the key or register.[72]
 
It is arguable that such definition is too narrow to meet the requirements of the Berne Convention. A narrow interpretation of the term ''translation'' would accord with the spirit and terms of Article 6bis which refers to ''any derogatory action in relation to the work.''[73] Secondly, the term of "derogatory" means the treatment "amounts to distortion or mutilation of the work, or is otherwise prejudicial to the honor or reputation of the author or director.''[74] As yet there is little indication as to what type of action will constitute a ''distortion'' or a ''mutilation'' of a work. Strictly speaking, under CDPA 1988, it depends on whether the alleged act is a matter prejudicial to honour or reputation of the author. There is also some doubt as to whether the test of ''prejudice'' is a subjective or objective one, though in one case the court suggested that the artist's view that it was prejudicial, was unreasonable.[75]
 
Sometimes, an author's contractual rights and the integrity right may conflict. In Frisby v British Broadcasting Corp., the weight was given to the plaintiff author's view of the significance of the deleted line of the television play and he succeeded.[76]
 
There is also a remarkable list of exemptions and qualifications. This right covers only use in the specified circumstances (commercial publication, film showing, etc).[77] The right does not apply in many cases which, to large extent, are similar to and even more than the limitations of paternity right.[78] However, the fair dealing defences do not apply in this right.
 
3.6.2 China
As mentioned above,[79] the integrity right has been separately listed as the "right of alteration" and the "right of integrity" in the CCA.[80] The former is the right to amend, or authorize others, to amend one's work. The latter is the right to protect one's work against distortion and mutilation. This right is not only based on the expression of work, but also extends easily into the author's ideas (major themes, plots, characters, relations of parts of work, and even relation between title and work).
 
CCA and IRCCA provide for certain specific limitations of moral rights that exist mainly in the right of integrity. Where a copyright owner has authorized adapting his work in audiovisual form, it is deemed that the authorization extends to making necessary alterations in the work provided such alteration does not distort or mutilate the original work.[81] A book publisher may, with the author's permission, revise and delete words from a work, whereas a newspaper or periodical may, without the author's consent, make editorial amendments and abridgments in a work, but no changes in its content.[82] It is also not infringement to alter computer programs for application in specific computer environments or improvements of functional performance.[83] In comparison with the UK, these limitations are relatively few.
 
3.6.3 Retraction Right
Retraction right, which is an extreme interpretation of the right of integrity, provides that an author has a right to withdraw his work from further dissemination because of his changed opinion. It is not mentioned in the Berne Convention, but is recognized in some of the civil law countries, e.g. France.[84] In both the UK and China, no such rights exist, either under written or unwritten law. But, in Chaplin v Frewin,[85] an English judge gave judicial consideration as to whether and how a right of recall could be protected because of a change of opinion (although the other judges considering the case did not accept it).
 
3.7 Right to Privacy of Certain Works
Actually, this is not a moral right in the strict sense, but it is part of English copyright law. Under CDPA 1988, where a person commissions a photograph or a film for private or domestic purposes and that work attracts copyright, he has the right to object to it being made public.[86] It does not confer any additional rights upon an author or the person whose image is subjected to publicity, but only provides redress to commissioner of certain works. Even though, there are also certain exceptions the most general of which is incidental inclusion.[87] In China, there is no such expression in copyright law, but anyone can rely on the right of privacy in the GPCC, and, generally, such right may prevail over other rights even if it conflicts with author's copyright or the right of holder of a work that contains one's image.
 
3.8 Performer's Moral Rights
According to Article 5 of WPPT, the basic moral rights which the performer requires are the right of identity and the right of integrity. Some countries have provided such protection. The UK has not, at present, granted statutory moral rights to performers. Such rights may be protected under the law of contract and tort. However, in China, a performer definitely enjoys the moral rights to credit for executing his performance (the right to claim performership) and to protect the image inherent in the performance from distortion.[88]
 
3.9 Duration
Under the CDPA 1988, the right to be identified, the right to object to derogatory treatment, and the right to privacy for certain photographs and films all last as long as copyright in the work (i.e. generally, author's lifetime plus 70 years).[89] The right against false attribution of a work continues to subsist until 20 years after the death of the person whose name is wrongly taken.[90] This is a clear example of taking advantage of the transigent exception, which Article 6bis(2) of Berne Convention provides. However, there are some important transitional provisions to exclude the applicability of moral rights.
 
No act done before August 1, 1989, is actionable as a violation of these moral rights, but it preserves causes of action previously arising under Section 43 of CA 1956 for violating the right against false attribution of authorship.[91] After August 1, 1989, the moral rights apply to old and new works alike subject to the following exceptions: Neither the right to be identified nor the right to object to derogatory treatment of a work apply when the author died before the date, in relation to a film made before the date, or to acts permitted under contractual grants made before the date.[92] Nor does the right to privacy in photographs and films apply to those made before August 1, 1989.[93] Thus, the full effect of the moral rights regime will develop over a number of years.[94]
 
Article 20 of CCA declares that the rights of authorship, alteration and integrity of an author are ''unlimited in time'', while Article 21 sets out the same term of the right of divulgation as economic rights within copyright (it generally lasts for the author's lifetime plus 50 years). As far as computer software is concerned, it is significantly different from other works in that the term of both economic rights and moral rights is 50 years under the latest amendment of RPCS.[95]
 
3.10 Assignability and Waiver
The essentially personal nature of moral rights strongly implies that it should be inalienable; only the author (or his personal representatives in the case where the rights last beyond the death of the author) should determine whether or not he wishes to exercise the rights.[96] But, more importantly, nothing in the provisions of the Berne Convention requires such unwaivability.[97]
 
Under UK law, it is clearly mentioned that the statutory moral rights are not assignable,[98] but any of statutory moral rights may be waived by instrument.[99] Such a waiver may relate to a specific work, to works of a specified description, or to works generally; it may relate to existing or future works; it may be conditional and may be made revocable.[100] An informal waiver or other transaction having effect under the general law of contract or estoppel may achieve the same result.[101] Such wider waiver provisions and uncontrolled power to "agree" to waive moral rights erode significantly the entire effectiveness of the rights.[102] It means that those who are in a weak bargaining position may be forced to waive their rights.[103] Many authors will be deprived of all moral rights by the standard waiver clauses, which extensively exist in industry especially for publishing and entertainment industry.
 
Such question is not clearly mentioned in CCA, but it reasonably implies, and people generally believe that the moral rights cannot be contractually alienated.[104] Although moral rights may also be waived, it is restricted in very exceptional cases.[105]
 
 
4. CONCLUSION
 
There are many domestic and foreign critics of the substance of the UK moral rights provisions,[106] whereas the chief complaint leveled at the Chinese legal position is the lack of more specific instructions for implementation.
 
As in many other civil law countries, moral rights in China have been spontaneously raised to a sacrosanct position and traditionally included among the author's rights since the establishment of a system of copyright law there. Since the right to create works is a natural human right, so too is the right to treat associated moral rights as inherent prerogatives of the author of the work.. As a reflection of such, the law universally confers moral rights to an author with only rare limitations, and sometimes in precedence over economic rights.
 
Although copyright protection lasted intermittently at earlier stages in Chinese legal development, and the history of protection is not longer than many other countries including UK, China has now fully accorded with Article 6bis of the Berne Convention and provides much stronger protection of moral rights than the UK and other common law countries, at least, in written law.
 
It is certainly true that all common law countries have some laws which, to a greater or lesser extent, directly or indirectly protect moral rights.[107] However, they have not done so sufficiently and clearly to adhere to the spirit of Berne Convention. Even the UK, which has done much more and probably better than some other allied countries, still seems averse to the canvassing of moral rights.
 
Obviously, British moral rights are significantly limited both by the specific scope of their statutory definitions and nearly numerous exceptions, and are totally undermined by uncontrolled waiver provisions. Actually, the Anglo-American tradition recognizes only those rights necessary for inducing the making and marketing of works.[108] Whether rights should be extended to a work is more a question of political pragmatism dependant on the strength of a particular interest group. In such a scheme, economic rights are primarily emphasized, and then moral rights may be considered to pacify particular complaints from the authors but always subject to practicality. Presumably, authors will have to remain in a weak position, compared with the full might of the industrial behemoths, as long as the law still treats author's moral rights cynically or half-heartedly.


BIBLIOGRAPHY
               

Chartrand Harry Hillman
 
Copyright C.P.U., Journal of Arts Management, Law & Society, Vol. 30, No. 3, Fall, 2000. 12th Dec, 2001, Searched from:
Chen Xu (Chief Editor)
 
Protection of Intellectual Property Rights Cases and Comments (Chinese-English Edition), 1st Edition, Beijing, Law Press, Jan, 1999
Cornish W.R.
 
Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 4th Edition, London, Sweet & Maxwell, [1999]
Cornish W.R.
 
Cases and Materials on Intellectual Property, 3rd Edition, London, Sweet & Maxwell, [1999]
Dworkin Gerald
 
Moral Rights and the Common Law Countries, [1994] Australian Intellectual Property Journal 5-36
Dworkin Gerald
 
The Moral Rights and English Copyright Law, 12 I.I.C. 476 [1981]
Dworkin Gerald
 
Moral Rights in English - The Shape of Rights to Come, E.I.P.R.. 1986, 8(11), 329-336
Dworkin Gerald & Taylor Richard D.
 
Blackstone's Guide to the Copyright, Designs and Patents Act 1988 - The Law of Copyright and Related Rights, Blackstone Press Limited, [1989]
Feng Peter
 
Intellectual Property in China, Hong Kong · Singapore, Sweet & Maxwell Asia, [1997]
Geller Paul Edward
 
International Copyright Law and Practice, New York, Matthew Bender, LexisNexis Group, [2000]
General Office of National Copyright Administration of China
 
International Copyright and Related Right Conventions (in Chinese-English), 1st Edition, Beijing, China Book Press, Jan, 2000
Ginsburg Jane C.
 
French Copyright Law: A Comparative Overview, Journal, Copyright Society of the U.S.A. 269 [1989]
Laddie H., Prescott P., Victoria M., Speck A. & Lane L.
 
The Modern Law of Copyright and Designs, 3rd Edition, London, Butterworths, [2000]
Masouyé Claude
 
Guide to Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971), English version by William Wallance, World Intellectual Property Organization, Geneva, 1978
Newman Simon
 
Intellectual Property Law - Rights, Freedoms and Phonograms: Moral Rights and Adaptation Rights in Music and Other Copyright Works, Computer Law & Security Report, Vol.13, No.1, 1997
Newman Simon
 
Intellectual Property Law - Part II - The Moral Rights of the Author: The View from France, Germany and the United Kingdom, Computer Law & Security Report, Vol.13, No.2, 1997
Nimmer Melville B. & Nimmer David
 
Nimmer on Copyright, New York, Matthew Bender, LexisNexis, Vol. 3, August, 2001
Shen Rengan
 
A Brief Discussion on the Right of Authorship, China Patents & Trademarks, April 1997
Sterling J.A.L.
 
World Copyright Law: Protection of Author's Works, Performances, Phonograms, Films, Video, Broadcasts and Published Editions in National, International and Regional Law, London, Sweet & Maxwell, [1998]
Wei Zhi
 
Copyright Law of China,1st Edition, Beijing, Peking University Press, Apr, 1998, in Chinese
Zheng Chengsi
 
Intellectual Property Enforcement in China - Leading Cases and Commentary, Hong Kong · Singapore, Sweet & Maxwell Asia, [1997]
Zheng Chengsi
 
Intellectual Property, 1st Edition, Beijing, Law Press, Jan, 1998, in Chinese
Zheng Chengsi
 
Commentary on the Articles of WTO/TRIPs Agreement, 1st Edition, Beijing, China Fangzheng Press, Jan, 2001, in Chinese
Zheng Chengsi,
 
The Law of Intellectual Property, textbook, 1st Edition, Beijing, Law Press, Jul, 1997, in Chinese

 


[1] Hereinafter abbreviated to Berne Convention and the following mention of this convention is based on the latest text - that revised at Paris on 24th July, 1971 (Paris Act) if no special indication.
[2] See W.R. Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 4th Edition, London, Sweet & Maxwell, [1999], § 11-63, 11-65, p.444 - 445.
[3] See Dworkin, Moral Rights and the Common Law Countries, [1994] A.I.P.J. 6.
[4] For UK, see Cornish, Intellectual Property, 4th Edition, London, Sweet & Maxwell, [1999], § 11-65, p. 445. See also § 3.1.1, infra.
[5] UK became the party of Berne Convention on 5th Dec, 1887, but accessed to Paris Act on 2nd Jan, 1990. China joined Paris Act on 15th Oct, 1992.
[6] In comparison with the typical countries in civil law system, such as France and Germany, the commencement of legal modernization in China was taken place quite late, just in 1910's and was frequently disturbed by a series of wars and revolutions until the end of 70's of last century since the policy of reform and opening has been launched.
[7] See Claude Masouyé, Guide to Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971), English version by William Wallance, WIPO, Geneva, 1978, p. 41-44. In Brussels Act (1948), the words "or other derogatory action in relation to the said work " was added in the first paragraph to extend the integrity right to all derogatory actions. In Stockholm Act (1967), the term of moral rights was prolonged from "during his lifetime", which appeared in Brussels Act (1948), to "at least until the expiry of the economic rights", but with a transigent exception.
[8] Resource from the WIPO's website: http://wipo.int/treaties/docs/english/e-berne.doc, 2nd Jan, 2002. There only 5 countries are currently not the party of the Paris Act of the Convention,[8] but they all are the party of Stockholm Act (1967) or Brussels Act (1948), or at least Rome Act (1928). That is to say, the all members of Berne Union have already promised to protect the author's moral rights and mostly under the effect of the 6bis of the Paris Act.
[9] This convention was signed at Geneva on 6th Sept, 1952 and revised at Paris on 24th July, 1971.
[10] Article 9.1 provides: "Members shall comply with Articles 1 through 21 of Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom." The date of becoming a member of WTO of UK and China are 1st Jan, 1995 and 11th Dec, 2001, respectively.
[11] WCT, Art. 1(4), 3. It provides that contracting parties shall comply with Articles 1 to 21 and the Appendix of Berne Convention.
[12] WPPT, Art. 5.
[13] Both WCT and WPPT were adopted by the WIPO Diplomatic Conference on Certain Copyright and Neighbouring Rights Questions in Geneva, on 20th Dec, 1996. UK has not joined WCT. UK and European Communities are the signatories of WPPT but have not ratified it. China is not the party of both treaties, but it has taken a positive step for it. The latest amendment of the CCA (in 2001) has matched up with the basic requirements of both treaties. Resource from: http://wipo.int/treaties/docs/english/s-wct.doc, 2nd Jan, 2002.
[14] In additional to this Article, the Art. 10(3) provides the author's name must be mentioned, and the Art. 11bis (2) regulates the conditions of broadcasting and related rights which have been prescribed by a member state shall not in any circumstances be prejudicial to the moral rights of the author.
[15] See Cornish, Intellectual Property, 4th Edition, London, Sweet & Maxwell, [1999], § 11-65, p.445.
[16]Millar v Taylor, (1769) 98 ER 201 at 252. The Lord Mansfield said:
  "From this argument - because it is just, that an author should reap the pecuniary profit of his own ingenuity and labour. It is just, that another should not use his name, without his consent. It is fit that he should judge that when to publish, or whether he ever will publish. It is fit he should not only choose the time, but the manner of publication; how many; what volume; what print. It is fit, he should choose to whose care he will trust the accuracy and correctness of the impression; in whose honest he will confide, not to foist in additions: with other reasoning of the same effect.
 
  The author may not be deprived of any profit, bit lose the expence he has been at. He is no more master of the use of his own name. He has no control over the correctness of his own work. He can not prevent additions. He can not retract errors. He can not amend; or cancel a faulty edition. Anyone may print, pirate, and perpetuate the imperfections, to the disgrace and against the will of the author; may propagate sentiments under his name, which he disapproves, repents and is ashamed of. He can exercise no discretion as to the manner in which, or the persons by whom his work shall be published."
He described copyright as a blend of economic and personal rights. Unfortunately, his views were not then concurred by other judges.
[17] See Dworkin, Moral Rights and the Common Law Countries, [1994] A.I.P.J. 6. See also his Article, The Moral Rights and English Copyright Law, 12 I.I.C. 476 [1981], p.477-478.
[18] See H. Laddie, P. Prescott, M. Victoria, A. Speck & L. Lane, The Modern Law of Copyright and Designs, 3rd Edition, London, Butterworths, [2000], § 13.1, p.585.
[19] See Cornish, Intellectual Property, 4th Edition, London, Sweet & Maxwell, [1999], § 11-65, p.445.
[20] See Dworkin, Moral Rights and the Common Law Countries, [1994] A.I.P.J. 12. See also his Article, The Moral Rights and English Copyright Law, 12 I.I.C. 476 [1981], p.478-493.
[21] Report of the Copyright Committee (1952), Cmnd. 8662, paras.219-226.
[22] Copyright and Design Law (1977), Cmnd. 6732, paras.51-57.
[23] See Edward Paul Geller, International Copyright Law and Practice, New York, Matthew Bender, LexisNexis, [2000], § 7[1]. See also Cornish, Intellectual Property, 4th Edition, London, Sweet & Maxwell, [1999], § 11-87, p.457. Even now, an author may get redresses from these laws in addition to 1988 Act. Especially, defamation historically provided much of the mechanism for protection of moral rights.
[24] The section 7 of the Fine Arts Copyright Act 1862 (FACA 1862) gave artist some protection against the unauthorized alteration of their drawings or the fraudulent affixing of signatures of them. The section 43 of the CA 1956 succeededit and prohibited to insert or affix a person's name to a work of which he was not the author or to sell an altered artistic work as being the unaltered work of author (named as false attribution of authorship).
[25] See Zheng Chengsi, The Law of Intellectual Property, textbook, 1st Edition, Beijing, Law Press, Jul, 1997, p.315-317. DQCL, Article 33 recognized moral rights both in protected works and those in the public domain; Article 34 regulated the right of integrity. The latter two statues just emulated it with slight revisions.
[26] This law was promulgated on 12th Apr, 1986, entered into force on 1st Jan, 1987, and being known as the most important and fundamental law in civil field in China, up to the present.
[27] CCA was passed on 7th Sept, 1990 and went into effect on 1st Jun, 1991.
[28] IRCCA was approved by the State Council on 24th May, 1991 and will be revised soon according the latest amendment of CCA.
[29] The main changes about moral rights are two. One is Art. 47(8) of 2001 text instead of Art. 46(7) of 1990 text. Another concerns the right of alteration of computer software copyright owner. Both will be mentioned in detail in § 3.4.2 & 3.5.2, respectively.
[30] RPCS was approved by the State Council on 24 May, 1991 and entered into effect on 1st Oct, 1991. It was amended on 20th Dec, 2001.
[31] See Sterling, World Copyright Law, London, Sweet & Maxwell 1998, § 8.10, p. 288.
[32] Here the word of "dualist" just means copyright contains both economic rights and moral rights. It does not refer to the dualism of copyright theory.
[33] At the beginning of Article 10, CCA states: "The term of 'copyright' shall include the following personality rights and property rights…."
[34] See Chartrand, Copyright C.P.U., J.A.M., Law & Society, Vol. 30, No. 3, Fall, 2000. 10th Dec, 2001, Searched from: http://www.culturaleconomics.atfreeweb.com/cpu.htm.
[35] Gerald Dworkin & Richard D. Taylor. Blackstone's Guide to the Copyright, Designs and Patents Act 1988 - The Law of Copyright and Related Rights, Blackstone, [1989], p.94.
[36] CDPA 1988, s. 77(1); for the joint authors and directors, see s. 88(1), (5).
[37] See Cornish, Intellectual Property, 4th Edition, London, Sweet & Maxwell, [1999], § 11-69, p.447.
[38] CDPA 1988, s. 80(1) and 82(1); as to the joint authorship and direction, see s. 88(2), (5).
[39] CDPA 1988, s. 79(2) and 81(2).
[40] Arti. 9 of CCA mentions that the term "copyright owners" (or holder or subject of copyright) shall include: (a) authors (i.e. "zhuozhe", here actually refers to as "natural person"); (b) other citizens, legal persons and other organizations without legal personality enjoying copyright in accordance with this Act. The 3rd para. of Art. 11 provides: "Where a work is created according to the intention and under the supervision and responsibility of a legal person and other organization without legal personality, such legal person and other organization without legal personality shall be deemed to be the author of the work."
[41] RPCS, Art.8(1), (2), (3).
[42] CCA, Art. 15.
[43] CDPA 1988, s. 77: "right to be identified as author or director".
[44] CDPA 1988, s. 80: "right to object to derogatory treatment of work".
[45] CDPA 1988, s. 84.
[46] CDPA 1988, s. 85.
[47] The 1991 text of RPCS did not separately provide the right of alteration (before amended in 2001, Art. 9(1) and (2) concerned moral rights, "alteration" was put under Art. 9(3) -a case of the right of use).
[48] See Dworkin, Moral Rights and the Common Law Countries, [1994] A.I.P.J. 6.
[49] See Sterling, World Copyright Law, London, Sweet & Max well [1998], § 8.02, p. 281-282.
[50] See Claude Masouyé, Guide to Berne Convention, English version by William Wallance, WIPO, Geneva, 1978, p. 42. At the Rome Revision, a proposal of "the right to decide whether the work shall be made to public" was suggested to add in the Convention, but eventually was given up and later revisions have not revived it because of different opinions.
[51] Prince Albert v. Strange (1848) 2 De Gex & Smale 652, 64 E.R. 293 (1849), 1 MacNaghten & Gordon 25, 41 E.R. 117 (1849).
[52] See Geller, International Copyright Law and Practice, New York, Matthew Bender, LexisNexis, [2000].
[53] See Sterling, World Copyright Law, London, Sweet & Max well 1998, § 8.03, p. 282.
[54] CDPA 1988, s. 77(2) - (5).
[55] CDPA 1988, s. 78(1).
[56] See Laddie, et al., The Modern Law of Copyright and Designs, 3rd Edition, London, Butterworths, [2000], § 13.11, p.590.
[57] CDPA 1988, s. 79(2), (3), (5), (6), (7).
[58] CDPA 1988, s. 79(4).
[59] See Dworkin, Moral Rights and the Common Law Countries, [1994] A.I.P.J. 20.
[60] See Wei Zhi, Copyright Law of China, 1st Edition, Beijing, Peking University Press, Apr, 1998, p. 60.
[61] For such unprotected work, see CCA, Art. 4 & 5.
[62] CCA, Art. 16.2.
[63]See § 3.3.1, supra. See also CCA, Art. 16.2.
[64] IRCCA, Art. 16.
[65] CCA, Art. 22 & 23.
[66] RPCS, Art. 8(2).
[67] See Zheng Chengsi, Intellectual Property Enforcement in China - Leading Cases and Commentary, Hong Kong · Singapore, Sweet & Maxwell Asia, [1997], p. 45-46.
[68]Art. 46(3) and 47(8) used to be Art. 45(3) and 46(7) in 1990 text, respectively. Before the amendment in 2001, the Art. 46(7) only offered such protection for artist's fine art.
[69] See Chen Xu (Chief Editor), Protection of Intellectual Property Rights Cases and Comments (Chinese-English Edition), 1st Edition, Beijing, Law Press, Jan, 1999, p. 208-238.
[70] See Shen Rengan, A Brief Discussion on the Right of Authorship, C.P.T., April 1997, p. 64-67. This case was tried by Lianhu District People's Court, Xi'an, Shanxi Province.
[71] See Cornish, Intellectual Property, 4th Edition, § 11-75, p.450.
[72] CDPA 1988, s. 80(2)(a).
[73] See Geller, International Copyright Law and Practice, New York, Matthew Bender, LexisNexis, [2000].
[74] CDPA 1988, s. 80(2)(b).
[75] Tidy v. Trustees of the Natural History Museum [1996] E.I.P.R. D-86, (1997) 39 I.P.R. 501(reductions of cartoons); Pasterfield v Denham [1999] F.S.R. 168 (modification of brochures), the court unlikely to treat author's own reaction a determinative, so both was held not amount to derogatory treatment. See also Laddie, et al., The Modern Law of Copyright and Designs, 3rd Edition, London, Butterworths, [2000], § 13.24, p.597-598.
[76] Frisby v British Broadcasting Corp. [1967] Ch. 932.
[77] CDPA 1988, s. 80 (3), (4), (5), (6).
[78] CDPA 1988, s. 81, 82 and 80 (5).
[79] See § 3.3.2, supra.
[80] In this essay, the phrase of the "integrity right" (or the "right of integrity") contains the "right of alteration" if no specification.
[81] IRCCA, Art. 13.
[82] CCA,Art. 33.
[83] RPCS, Art. 16(3).
[84] Intellectual Property Code, L.121-4. It is subject to an obligation to indemnify the publisher against loss, so appears to be exercised rarely. See also Cornish, Intellectual Property, 4th Edition, § 11-77, p.452.
[85] Chaplin v Leslie Frewin (Publishers) Ltd. and Others, [1966] Ch. 71. Although the court refused plaintiff's claims to grant an interlocutory injunction, Lord Denning dissented and said (at 88):"I know he has been foolish, but he should be allowed a space for repentance even at the eleventh hour. After all, he only recently received legal advice and at once he did all he could to stop the publication. It was his own fault that he did not take legal advice earlier. But he should not lose his legal rights on that account."
[86] CDPA 1988, s.85(1).
[87] CDPA 1988, s.85(2).
[88] CCA, Art. 37(1), (2). Used to be Art. 36(1), (2) before 2001.
[89] CDPA 1988, s.86(1).
[90] CDPA 1988, s.86(2).
[91] CDPA, Sched. 1, para. 22.
[92] CDPA, Sched. 1, para. 23.
[93] CDPA, Sched. 1, para. 24.
[94] See Dworkin, Moral Rights and the Common Law Countries, [1994] A.I.P.J. 27.
[95] RPCS, Art. 14. Before this amendment, there was no limit on the period of software developer's right of authorship, and the term of other rights was 25 years but the software copyright holder could apply for a 25 years renewal.
[96] See Dworkin, Moral Rights in English - The Shape of Rights to Come, E.I.P.R.. 1986, 8(11), 330.
[97] See Nimmer, Nimmer on Copyright, New York, Matthew Bender, LexisNexis, [2001], Vol. 3, § 8D.01[B].
[98] CDPA 1988, s. 94.
[99] CDPA 1988, s. 87.
[100] CDPA 1988, s. 87(1)-(3).
[101] CDPA 1988, s. 87(4).
[102] See Dworkin, Moral Rights and the Common Law Countries, [1994] A.I.P.J. 28.
[103] See Laddie, et al., The Modern Law of Copyright and Designs, 3rd Edition, London, Butterworths, [2000], § 13.41, p. 607.
[104] The latest amendment of CCA only admits the transferability of the economic rights of a work, in first time. Before this, people generally thought all kinds of copyright could not be transferred.
[105] For the exceptions, see § 3.6.2 supra, or CCA Art. 33, IRCCA Art. 13 and RPCS Art. 16.3.
[106] See Dworkin, Moral Rights and the Common Law Countries, [1994] A.I.P.J. 28-29.
[107] See Dworkin, The Moral Rights and English Copyright Law, 12 I.I.C. 476 [1981].
[108] See Chartrand, Copyright C.P.U., J.A.M., Law & Society, Vol. 30, No. 3, Fall, 2000.

Related Articles.